Text of Judge's TRO Order in Occupy Boston Case

Superior Court Judge Frances A. McIntyre issued her order today in Occupy Boston v. City of Boston, granting a temporary order restraining the city from removing Occupy Boston protesters from Dewey Square. Notably, the judge concluded that the protesters were likely to succeed in their claim that their occupation of Dewey Square is a form of speech protected by the First Amendment.

Read the full text of today's order: Occupy Boston v. City of Boston.

AG OKs Remote Participation in Public Meetings

Members of government boards and commissions in Massachusetts will now be able to participate in meetings remotely, using audio or video conferencing, under open-meeting regulations approved today by Attorney General Martha Coakley.

The regulations, 940 CMR 29.10, were announced today and take effect tomorrow, Nov. 11.

Before any committee member can take advantage of the new regulations, the procedure must be adopted by the applicable government body. For local cities and towns, the mayor or board of selectmen must OK remote participation before any local board can use it. State boards can adopt the procedure by majority vote.

The regulations set out three requirements for remote participation:

1. Members who participate remotely and all persons present at the meeting location must be clearly audible to each other.
2. A quorum of the body, including the chair or, in the chair’s absence, the person authorized to chair the meeting, must be physically present at the meeting location.
3. Members who participate remotely may vote and are not considered absent.

Under the regulations, remote participation will be allowed only when a member's physical presence at the meeting is "unreasonably difficult" due to one of five reasons:

• Personal illness.
• Personal disability.
• Emergency.
• Military service.
• Geographic distance.

Once remote participation is approved for a meeting, then the regulations require that the following procedures be followed:

• The member who wishes to participate remotely must, as soon as reasonably possible prior to a meeting, notify the chair of his or her desire to do so and the reason.
• At the start of the meeting, the chair must announce the name of any member who is participating remotely and the reason. The information is also to be recorded in the meeting minutes.
• All votes taken during the meeting must be by roll call.
• The remote member may participate in an executive session, but must state at the start of any such session that no other person is present or able to hear the discussion at the remote location (unless the board votes to approve the person's presence).
• When feasible, the chair should distribute to remote participants, in advance of the meeting, copies of any documents or exhibits likely to be used during the meeting.

Changes to the open meeting law that took effect on July 1, 2010, gave the AG exclusive authority for the law's enforcement. Those changes gave the AG the discretion to authorize remote participation, provided absent members and all persons present at the meeting are clearly audible to each other and that a quorum is present at the meeting location.

SJC Cases Test Media Access to Courts

The Massachusetts Supreme Judicial Court is slated to hear arguments this week in a series of cases that test news media access to court proceedings and documents.

On Tuesday, Nov. 8, at 9 a.m., the SJC will hear two cases, both arising out of the experimental OpenCourt project designed to make Quincy District Court more accessible to the public. Both cases challenge the right of OpenCourt to webcast criminal proceedings live and to archive webcasts on the Internet.

In one of the two cases, Charles Diorio v. First Justice of the Quincy Div. of the District Court Department, Diorio contends that OpenCourt's broadcast of his arraignment and archiving of the footage violated his constitutional right to a fair trial because identification would be an issue at the trial. In the second case, Commonwealth v. Norman Barnes, the district attorney challenges OpenCourt's archiving of an evidentiary hearing in which the identity of a child sexual assault victim was disclosed.

In both cases, WBUR-FM, the Boston University public radio station that operates OpenCourt, argues that any restrictions on it webcasting and archiving would constitute prior restraint in violation of the First Amendment.

On Wednesday, Nov. 9, at 9 a.m., the SJC will hear another media-access case, coincidentally also arising out of Quincy District Court, William O'Connell v. Criminal Clerk of Quincy District Court. The issue in this case is whether affidavits and other materials filed in support of a search warrant are public documents.

The appeal results from a request by The Patriot Ledger in Quincy to terminate an impoundment order covering documents filed in support of a warrant to search O'Connell's condominium. O'Connell's principle argument in support of maintaining the secrecy of the documents is that they involve allegations of rape and sexual assault. But the District Court judge, in lifting the impoundment order, ordered that any references to the alleged victim be redacted to protect her privacy.

In the O'Connell case, the Massachusetts Newspaper Publishers Association has filed an amicus brief, in conjunction with the New England Newspaper and Press Association, the Citizen Media Law Project and the New England First Amendment Coalition.

All of the arguments at the SJC this week will be webcast.