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.

1st Circuit Rules Public Has Right to Videotape Police

In a resounding affirmation of the First Amendment, the 1st U.S. Circuit Court of Appeals has ruled that members of the public have a constitutionally protected right to videotape police carrying out their duties in public. The Aug. 26 ruling in Glik v. Cunniffe is important to professional journalists and citizen journalists alike. It is of particular significance in Massachusetts, where a state anti-wiretapping law has been used to chill the public's right to videotape police and other public officials.

The ruling comes in the case of Simon Glik, a Russian-born, Boston lawyer. In 2007, while walking through Boston Common, Glik saw a teenager being arrested by Boston police. After he took out his cell phone and began recording the arrest, the police arrested him for violating the Massachusetts wiretap law, a broadly written law that makes it a crime to intercept "any wire or oral communication."

After a state court judge dismissed all the charges against him, Glik filed a civil rights lawsuit in federal court against the police officers who arrested him and the City of Boston. The defendants asked the court to dismiss the lawsuit based on their qualified immunity from lawsuits as police officers acting within the scope of their duties. The trial judge refused to dismiss the case and the defendants appealed to the 1st Circuit.

The 1st Circuit's decision reads like a textbook on the First Amendment. Here is one key passage:

The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within [First Amendment] principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting "the free discussion of governmental affairs." Mills v. Alabama, 384 U.S. 214, 218 (1966). Moreover, as the Court has noted "[f]reedom of expression has particular significance with respect to government because '[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.'" First Nat'l Bank, 435 U.S. at 777 n.11 ... This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties. ... Ensuring the public's right to gather information about their officials not only aids in the uncovering of abuses, ... but also may have a salutary effect on the functioning of government more generally.

The court emphasizes the the right to film belongs not just to members of the news media, but to everyone:

It is of no significance that the present case ... involves a private individual, and not a reporter, gathering information about public officials. The First Amendment right to gather news is, as the [Supreme] Court has often noted, not one that inures solely to the benefit of the news media; rather, the public's right of access to information is coextensive with that of the press. ... Indeed, there are several cases involving private individuals among the decisions from other courts recognizing the First Amendment right to film. ... Moreover, changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.

I should note that the Massachusetts Newspaper Publishers Association, for which I serve as executive director, was part of a group of media organizations that sought but were denied permission to file an amicus brief in this case.

For a much more detailed discussion of the ruling, see the post by Jeff Hermes at Citizen Media Law Project.