Search Warrant Affidavit Open to Public, SJC Rules

In a victory for the news media, the Supreme Judicial Court today sided with the Quincy Patriot Ledger and ruled that the affidavit filed by police in support of a search warrant should be open to the public.

The case involved a State Police investigation into allegations that a prominent Quincy real estate developer, William O’Connell, had engaged in unlawful sexual relations with a minor. Shortly after police executed the warrant, a Quincy District Court judge impounded the affidavit.

The Patriot Ledger intervened in the criminal case to seek access to the impounded affidavit. Ruling that the document was presumptively public, the District Court judge lifted the impoundment order. Prosecutors and O’Connell both appealed.

In its decision today, the SJC noted that there is a longstanding presumption in favor of public access to search warrants and supporting materials. While a judge may restrict access for good cause, impoundment should be used only in limited and specific circumstances, the SJC said.

Here, the SJC rejected O’Connell’s argument that release of the affidavit would prejudice his right to a fair trial. “By engaging in the proper balancing of interests, and utilizing the procedural tools available in criminal proceedings, judges are well equipped to safeguard a defendant's right to a fair trial,” the court said.

The SJC also ruled for the first time on the applicability of a state law that makes reports to police of rapes or sexual assaults private. General Laws c. 41, § 97D, provides: "All reports of rape and sexual assault or attempts to commit such offenses and all conversations between police officers and victims of said offenses shall not be public reports and shall be maintained by the police departments in a manner which will assure their confidentiality."

Prosecutors and O’Connell argued that this statute applied not only to police records, but also to court records, including search warrant affidavits. The SJC concluded otherwise, it does not by its terms preclude publication in court of police reports or the content of a victim's conversations with police regarding an alleged rape or sexual assault.

The case is Commonwealth v. George W. Prescott Publishing Co., LLC.

The Massachusetts Newspaper Publishers Association, for which I serve as executive director, filed an amicus brief in support of the Patriot Ledger, together with the New England Newspaper and Press Association, the Citizen Media Law Project and the New England First Amendment Coalition. 

Outrageous Censorship of Blogger in Berkshire County

A District Court judge in Pittsfield, Mass., that makes a travesty of the First Amendment. Last Thursday, Judge Bethzaida Sanabria-Vega ordered blogger Dan Valenti to remove from his blog Planet Valenti all references to Meredith Nilan, a Pittsfield-area woman who had faced criminal charges related to a car accident last year that seriously injured a pedestrian out walking his dog. 

The judge's order directed Valenti "to remove any and all information referring to the Plaintiff from any and all websites, blogs, etc." 

Reporter Andrew Amelinckx has the full story in The Berkshire Eagle. Valenti later complied with the order and removed all references to Nilan from his blog, Amelinckx reports. An editorial yesterday in The Berkshire Eagle said this incident "should concern anyone who takes the First Amendment seriously." 

The blog Popehat points out another angle of this story. Nilan, the woman who took out the harassment complaint, is the daughter of Clifford J. Nilan, chief probation officer of the Berkshire Superior Court. 

Nilan's affidavit in support of her request for a harassment prevention order alleged that Valenti "began a regular and malicious attack on my reputation, including and not limited to publishing on his website, www.planetvalenti.com, lies and innuendo regarding a traffic accident from December 2011." 

From what I've seen of them, Valenti's posts focused on his belief that the prosecution of the criminal case against Nilan was mishandled and was a "travesty of justice." He lays out his take on the case against Nilan and explains why he believes it was botched. 

This is precisely the kind of writing that the First Amendment protects from censorship and prior restraint. If Nilan believes she has been defamed, then her remedy is to sue Valenti for libel, not to ask a judge to shut him down. 

The judge has scheduled a follow-up hearing for Monday, July 9, when she will decide whether to continue the harassment order in effect. Let's hope cooler heads -- and the First Amendment -- prevail. 

Bills to Strengthen Open Meeting Law Get Mothballed

Bills that would have put sharper teeth in the Massachusetts Open Meeting Law and that would have extended the law to the legislature have been effectively mothballed for this legislative session. The legislature's Joint Committee on State Administration and Regulatory Oversight referred out the bills with a study order, which means nothing else is likely to happen with them during the current legislative session.

One of the bills that the committee referred to study is House Bill 1734, filed by Rep. Antonio F.D. Cabral (D-New Bedford). It would have allowed courts to impose civil penalties on public officials who intentionally violate the OML and would have authorized the Attorney General's Office to impose public reprimands on officials who intentionally violate the law. Under the current law, a public official who violates the law faces no individual consequences of any kind.

Rep. Cabral's bill would also have authorized recovery of attorneys' fees and costs by citizens who bring legal actions to enforce the OML. Currently, Massachusetts is one of fewer than 10 states that do not allow citizens to recover attorneys' fees.

The Joint Committee also mothballed four different bills, all of which would have included the legislature under the OML. Currently, the legislature is exempt from open-meeting requirements. The four bills are House Bill 848, House Bill 2594, House Bill 3037 and Senate Bill 1625.

SJC Issues Key Ruling on Cameras in Courts

The Massachusetts Supreme Judicial Court issued an important ruling this morning on the constitutionality of cameras in the courts. Ruling on two challenges to the OpenCourt pilot project in Quincy District Court, the SJC held in Commonwealth v. Barnes that any order restricting live video streaming from the courtroom is a form of prior restraint and can be upheld only if it is the least restrictive, reasonable measure necessary to protect a compelling government interest. Here is the SJC's precise language:

We conclude that any order restricting OpenCourt's ability to publish -- by "streaming live" over the Internet, publicly archiving on the Web site or otherwise -- existing audio and video recordings of court room proceedings represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution. Such an order may be upheld only if it is the least restrictive, reasonable measure necessary to protect a compelling governmental interest. 

In the two challenges at issue here, the SJC held that neither case satisfied the standard to justify the prior restraint:

In the Barnes case, we vacate the order of the District Court judge requiring the redaction of the name of the minor alleged victim. We expect and anticipate that OpenCourt will continue to adhere to its policy of not publishing the name of the minor, but agree that on the record of this case, the judge's order was unconstitutional because the Commonwealth did not provide an adequate demonstration that this particular minor's privacy or psychological well-being would be harmed by publication of her name, or that a prior restraint was the least restrictive reasonable method to protect those interests. In the Diorio case, we conclude that Diorio has not met the heavy burden of justifying an order of prior restraint with respect to the specific proceedings at issue in his petition for relief. 

Notably, the SJC went on to request that its Judiciary-Media Committee (on which I serve as the representative of the Massachusetts Newspaper Publishers Association) submit for the SJC's approval a set of guidelines for the operation of the OpenCourt pilot project.

AG Posts Series of Open Meeting Law Training Videos

Kudos to Attorney General Martha Coakley's office for creating and posting a series of free training videos in the Massachusetts Open Meeting Law. The videos are available on the AG's website and also on YouTube. They are useful for public officials, members of the press, members of the public and anyone wanting a better understanding of the law.

The series consists of six separate videos. The entire series takes about an hour to watch. The six in the series are:

• Video #1: Introduction and Open Meeting Law Definitions.
• Video #2: Meeting Notices.
• Video #3: Accessibility of Meetings; Remote Participation; and Public Participation in Meetings.
• Video #4: Executive Sessions.
• Video #5: Meeting Minutes and Records.
• Video #6: Public Body Member Certification; Open Meeting Law Complaint Process; Resources and Contact Info. 

Along with the videos, the AG's office has provided the full transcript of the series for download.

Video of Tuesday's Hearing on Shield Bill

As I noted previously, the Massachusetts legislature's Joint Committee on the Judiciary held a hearing this week on a bill to create a journalist shield law in Massachusetts. House Bill 2255, the Free Flow of Information Act, sponsored by Rep. Alice Hanlon Peisch (D-Wellesley), would bar state government from compelling members of the news media to disclose the source of any news or information.

WWLP State House Reporter Christine Lee covered the hearing and filed this report. It includes interviews with media lawyer Jon Albano, Rep. Peisch and me.

Shield law to protect anon sources: wwlp.com

Cameras in Courts Focus of Boston Bar Panel

The U.S. District Court in Massachusetts is among 14 federal courts participating in a pilot project allowing cameras in the courtroom. I am moderating a panel this week that will look at this pilot project, and also contrast it with the experimental OpenCourt digital-access project under way in Quincy District Court. Also on the panel will be former U.S. District Judge Nancy Gertner, now a professor at Harvard Law School, and Joe Spurr, a multimedia journalist and the director of OpenCourt.

The brown-bag program is Tuesday, March 6, 12:30 to 1:30 p.m., at the Boston Bar Association, 16 Beacon St., Boston. More details and registration information are available here.

Legislature Sets March 6 Hearing on Journalist Shield Bill for Mass.

The Joint Committee on the Judiciary will hold a hearing this week on a bill to create a journalist shield law in Massachusetts. House Bill 2255, the Free Flow of Information Act, sponsored by Rep. Alice Hanlon Peisch (D-Wellesley), would bar state government from compelling members of the news media to disclose the source of any news or information.

The hearing is set for Tuesday, March 6, at 1 p.m. in State House Room A-2.

The bill would also bar the compelled disclosure of notes, outtakes, film and other materials collected by a reporter but not used in any news report, unless a court first determines that the information cannot be obtained anywhere else and there is an overriding public interest in the disclosure.

In addition to barring disclosure of sources and notes, the bill would prohibit the state from compelling a reporter to testify except in cases where disclosure of the identity of a source is necessary to prevent imminent acts of terrorism.

Massachusetts is one of only 10 states that does not have a statute that shields journalists from subpoenas. Last April, West Virginia became the 40th state to enact such a law. The District of Columbia also has a shield law.

The Massachusetts Newspaper Publishers Association and the Massachusetts Broadcasters Association will be among those testifying at Tuesday's hearing. Others with an interest in this bill are encouraged to testify or attend and show their support.

New Rule Governs Electronic Access to Mass. Courts

The Massachusetts Supreme Judicial Court today approved a new SJC Rule 1:19 governing Electronic Access to the Courts. It replaces the older rule on cameras in the courts to address changes in technology and journalism. Among other changes, the rule recognizes citizen journalists and entitles them to use cameras and computers to the same extent as other journalists.

I posted more information about the new rule and a full-text PDF at my LawSites blog.