SJC Denies Post-trial Access to Jury List

The Massachusetts Supreme Judicial Court today denied a newspaper's request for post-verdict access to jurors' names and addresses in a New Bedford criminal trial. Justice Judith Cowin wrote for the court that First Amendment rights must bow to a legitimate concern for juror safety. The request had been made by the New Bedford Standard-Times newspaper. The Massachusetts Newpaper Publishers Association (of which I am executive director) had filed a brief as amicus curiae.

The full text of the decision follows.


COMMONWEALTH vs. Manuel SILVA.
SJC-09750
January 2, 2007. - April 5, 2007.
Constitutional Law, Impoundment order. Uniform Rules on Impoundment Procedure. Practice, Criminal, Impoundment order, Jury and jurors. Jury and Jurors. Supreme Judicial Court, Superintendence of inferior courts, Appeal from order of single justice. Public Records.

INDICTMENT found and returned in the Superior Court Department on September 26, 2002.

Following entry of an order impounding the jury list by Gary A. Nickerson, J., review of the order was sought by a nonparty from a single justice of the Appeals Court.

The matter was reported to a panel of the Appeals Court by Elspeth B. Cypher, J. The Supreme Judicial Court on its own initiative transferred the matter from the Appeals Court.

Anthony C. Savastano for The Standard Times Publishing Company.

Randall E. Ravitz, Assistant Attorney General, for the Superior Court Department of the Trial Court for the county of Bristol.

Peter J. Caruso & Peter J. Caruso, II, for Massachusetts Newspaper Publishers Association, amicus curiae, submitted a brief.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, & Cordy, JJ.

COWIN, J.

In this appeal, the Standard-Times Publishing Company, publisher of the New Bedford Standard-Times newspaper (the Standard-Times), seeks review of an order of a judge in the Superior Court impounding the names and addresses of jurors who served at a murder trial involving alleged gang violence. We conclude that in light of identified and justifiable concerns regarding the jurors' safety, the impoundment order was not an abuse of discretion. [FN1]

Background. The relevant background is set forth in the judge's order. The defendant was charged with murder in the first degree and conspiracy in the shooting death of the victim. At trial the Commonwealth introduced evidence that the defendant and another individual were members of a New Bedford street gang, and that they killed the victim, a member of a rival gang, by firing multiple rounds at him in his automobile in what the judge termed "an indiscriminate act of gang vengeance." One of the Commonwealth's principal witnesses at trial was the defendant's girl friend. Prior to her testimony, she was attacked by an unknown individual who fired shots at her in her automobile, lodging four bullets in the car but leaving her unharmed. During the trial, the judge discharged one of the empanelled jurors, a New Bedford resident who worked near where the events took place, because she "had become so fearful of the circumstances surrounding the case that she could not fairly continue." The jury ultimately returned a verdict of not guilty. Two hours later, police were called to the house of the defendant's mother, which had been sprayed with gunfire by an unknown assailant. At least eleven shots were fired at the home, one grazing a bystander.

Prior to the verdict, a reporter for the Standard-Times filed a motion requesting postverdict access to the names and addresses of the trial jurors. The Standard-Times later filed an "Amended Motion for Jury List" seeking the same information. At a hearing on the motion, counsel for the Standard-Times argued that the newspaper had a right to the information under both the First Amendment to the United States Constitution and the common-law right of access to judicial records. Neither the Commonwealth nor the defendant took a position. The Commonwealth did, however, express reservations about releasing the identities of the jurors, due chiefly to juror safety issues, and brought to the judge's attention the shooting that had taken place shortly after the verdict. The judge asked the Commonwealth to provide police reports from that incident and from the shooting involving the defendant's girl friend, of which the judge was already aware.

In a thoughtful memorandum of decision, the judge denied the motion for access to the jury list and ordered the jurors' names and addresses impounded, stating that "[a] genuine concern for the safety of [these] jurors bars any release of identifying data." The judge particularly emphasized the shooting incident immediately after the trial, which, based on its timing and location, he interpreted as retaliation for the jury's verdict of not guilty. The Standard-Times sought review of the order from a single justice of the Appeals Court, arguing that the impoundment of the jury list was both legally erroneous and not supported by sufficient findings. [FN2] The single justice reported the case to a panel of the Appeals Court. The Attorney General entered an appearance on behalf of the Superior Court Department of the Trial Court (Superior Court). [FN3] We transferred the matter here on our own motion.

Procedure. As an initial matter, the Superior Court argues that the instant appeal was not properly before the single justice of the Appeals Court. This argument requires us to revisit the question of the proper procedure for nonparties, including members of the media, to obtain access to impounded court documents. See Republican Co. v. Appeals Court, 442 Mass. 218, 227 n. 14 (2004); Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 600-602 (2000); Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Court Dep't, 403 Mass. 628, 629 nn. 2 & 3 (1988), cert. denied, 490 U.S. 1066 (1989); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 551 (1977).

Recently, in the Republican Co. case, we provided guidance on this recurring issue with particular regard to criminal cases:

"Where possible, a nonparty seeking access to material that has been impounded in the course of a criminal proceeding should file a motion to be heard in the proceeding and in the court that issued the order of impoundment. In those circumstances where there is no ongoing proceeding that would allow for the filing of such a motion, a nonparty seeking relief from an order of impoundment may proceed by 'bring[ing] a civil action in the court which issued it, joining the clerk of that court in his official capacity and the parties to the action or at least any who obtained or may defend that order.' "

Republican Co. v. Appeals Court, supra at 227 n. 14, quoting Ottaway Newspapers, Inc. v. Appeals Court, supra at 551. The Republican Co. decision did not, however, explain the proper avenue of appellate review in such cases. A separate civil action brought against the court issuing the impoundment order will "end in a judgment capable of appeal under ordinary rules." Ottaway Newspapers, Inc. v. Appeals Court, supra at 551. Here, however, where there was an "ongoing proceeding," the Standard-Times properly "file[d] a motion to be heard in the proceeding," Republican Co. v. Appeals Court, supra at 227 n. 14, but it was not clear how to obtain review of the disposition of its motion. The Standard-Times petitioned a single justice of the Appeals Court for review pursuant to G.L. c. 231, § 118, first par. However, this provision applies only to interlocutory orders in civil cases. See Stewart v. Commonwealth, 413 Mass. 664, 666 n. 5 (1992), S. C., 414 Mass. 1006 (1993). We therefore take the opportunity to clarify the correct procedure for nonparties, including the media, to obtain appellate review of an impoundment order in an ongoing criminal case.

In the past, when describing procedures to be followed regarding impoundment in criminal cases, we have looked to the Uniform Rules on Impoundment Procedure, which, although technically applicable only to civil proceedings, have been considered instructive in criminal cases as well. See Republican Co. v. Appeals Court, supra at 223 n. 8 & 225 n. 11. Indeed, we have stressed that the "[p]ractice regarding orders of impoundment entered in criminal proceedings should hew as closely as possible to the protocol described by the uniform rules." Id. at 227 n. 14. Thus, in the absence of any statute or rule expressly providing a route for appellate review of impoundment orders in criminal cases, we look to the analogous provision of the uniform rules, which provides that "[a]n order impounding or refusing to impound material shall be subject to review by a single justice of an appellate court in accordance with provisions of law and consistent with the procedures established in Rule 1:15 of the Rules of the Supreme Judicial Court." [FN4] Rule 12 of the Uniform Rules on Impoundment Procedure (2007). In future cases, appellate review of an impoundment order in an ongoing criminal proceeding should conform to the Uniform Rules on Impoundment Procedure, and should be sought in the first instance before a single justice of the Appeals Court, as was done in the present case. [FN5]

We impose an additional requirement relevant to motions filed in ongoing criminal cases by nonparties seeking access to impounded documents such as jury lists. While the parties to the underlying action will often have a sufficient interest to litigate such a motion adequately, sometimes, as in the present case, they may take no position. See In re Globe Newspaper Co., 920 F.2d 88, 91 (1st Cir.1990) (where parties to action did not oppose release of jury list, it was helpful to have counsel for trial court to articulate position favoring jury privacy). In a case of this nature, the Attorney General is best suited to represent the interests of the public, including jurors, where the impounded materials may concern jurors. [FN6] Accordingly, the Attorney General must receive notice of, and an opportunity to be heard on, any motion filed in any court by a nonparty to obtain access to impounded documents in a criminal case. [FN7]

Relevant law. We turn to the substance of the Standard-Times's appeal. In Massachusetts, the right of public access [FN8] to judicial records is governed by overlapping constitutional, statutory, and common-law rules. There is no statutory right to the names and addresses of members of a jury panel.

[FN9] Only the list of the entire jury venire, which is not at issue here, is a public record pursuant to G.L. c. 234A, § 67. [FN10] Furthermore, while the questionnaires completed by jurors prior to their service are made confidential by statute, see G.L. c. 234A, §§ 22, 23, those documents are likewise not at issue here.

Massachusetts has long recognized a common-law right of public access to judicial records. [FN11] Republican Co. v. Appeals Court, supra at 222; Boston Herald, Inc. v. Sharpe, supra at 604. This right of access is not absolute, however, and must yield to a trial judge's decision to impound records for "good cause." Republican Co. v. Appeals Court, supra at 223; Boston Herald, Inc. v. Sharpe, supra. This balance of competing rights is reflected in the Uniform Rules on Impoundment Procedure, which "incorporate many of the principles of our prior cases, including the requirement that an order of impoundment be entered only on a showing of 'good cause.' "

[FN12] H.S. Gere & Sons, Inc. v. Frey, 400 Mass. 326, 332 (1987).

There is also a constitutional right of public access to court proceedings grounded in First Amendment principles. See Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 9-10 (1986), citing Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510 (1984); Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Court Dep't, 403 Mass. 628, 634 (1988), cert. denied, 490 U.S. 1066 (1989). In this case, however, the judge did not attempt to apply a separate constitutional analysis, because none was necessary. The "good cause" analysis of rule 7 of the Uniform Rules on Impoundment Procedure "require[s] a judge to take into account essentially the same factors as required by the First Amendment: 'the competing rights of the parties and alternatives to impoundment.' " Republican Co. v. Appeals Court, supra at 223 n. 8, quoting Boston Herald, Inc. v. Sharpe, supra at 605 n. 24. Thus, in applying the "good cause" standard of the uniform rules, the judge of necessity treated the relevant constitutional considerations, and we do likewise.

Discussion. We review a trial judge's decision to impound judicial records for abuse of discretion or other legal error. Boston Herald, Inc. v. Sharpe, supra at 601. Here, the judge impounded the jurors' names and addresses based on a concern for juror safety that was amply justified by the circumstances surrounding the trial.

The safety of jurors is crucial to the functioning of the judicial system, see Commonwealth v. Acen, 396 Mass. 472, 482 (1986) (recognizing that jury service is "critical to the just operation of the court system"). If jurors doubt the system's ability to protect them from violence, cooperative service is discouraged and public confidence in the rule of law diminished. Furthermore, as one court has astutely observed, "[u]ninhibited and frank jury deliberations are essential to our system of justice. That frankness would be jeopardized if jurors refrained from speaking freely because they fear for their safety should their names and comments become public knowledge." In re Disclosure of Juror Names and Addresses, 233 Mich.App. 604, 628 (1999). See United States v. Giraldi, 858 F.Supp. 85, 86 (1994) (recognizing court's duty to impound juror information where necessary to protect jurors from reprisal and intimidation). While other key participants in a high-profile criminal trial involving dangerous offenders--the prosecutor, the defense attorney, and the judge--have all willingly accepted any attendant publicity and risks, the jurors have not. Having conscripted jurors into what has been aptly termed, "next to bearing arms in defense of the nation, ... the highest calling of American citizenship," United States v. Doherty, 675 F.Supp. 719, 722 n. 4 (D.Mass.1987), the justice system owes them the highest degree of vigilance for their personal safety.

We have no difficulty concluding that, in this particular murder trial, considerations of juror safety warranted impoundment of the jury list. The killing itself was an appalling act of violence. One of the Commonwealth's key witnesses was the victim of an armed assault prior to trial. A mere two hours after the jury's verdict acquitting the defendant, and ostensibly in response to it, an unknown assailant shot at the house of the defendant's mother. Indeed, one of the jurors feared so greatly for her safety that she had to be released from service.

With the exception of the postverdict shooting, which was made known to the judge at the motion hearing and through a police report, all of these facts were known to the trial judge as a result of presiding at the trial. In fact, although purporting to contest the legitimacy of the jurors' safety concerns, the Standard-Times states that its very purpose in seeking access to the jurors was to investigate the role that fear of retaliation may have played in their verdict. [FN13] Thus, in the circumstances of this case, there is no merit to the Standard-Times's argument that the judge was required to conduct an evidentiary hearing regarding the juror safety issues. The uniform rules require only written findings of good cause made after a "hearing," and do not expressly mandate an evidentiary hearing. See note 12, supra. There may be special cases where it is necessary to have an evidentiary hearing on whether to impound a jury list, but here, where facts known to the judge by virtue of presiding over the trial raised serious questions of juror safety, it was unnecessary.

We recognize the cases cited by the Standard-Times and the amicus in which other jurisdictions, notably the United States Court of Appeals for the First Circuit, have been protective of the public's right to access juror information. [FN14] See, e.g., In re Globe Newspaper Co., 920 F.2d 88 (1st Cir.1990). See also In re Baltimore Sun Co., 841 F.2d 74 (4th Cir.1998); State ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio St.3d 146 (2002). We find significant, however, the acknowledgment in several of these cases that "First Amendment rights may have to bow to a court's needs to protect its essential processes, including the jury system, from violence, fraud and other influences that threaten the objectivity and independence of jurors." In re Globe Newspaper Co., supra at 97 n. 10. See In re Disclosure of Juror Names and Addresses, supra at 628-631 (remanding for consideration of risks to juror safety from disclosure). It goes without saying that no case has been called to our attention in which a public right to juror information was held to override a legitimate concern for juror safety.

Conclusion. Because the judge had good cause to impound the jury list, there was no abuse of discretion or other error. The order of the Superior Court denying the amended motion for the jury list and impounding the names and addresses of the trial jurors is affirmed.

So ordered.

FN1. We acknowledge the amicus brief of the Massachusetts Newspaper Publishers Association.

FN2. The Standard-Times contends that the trial judge was required to hold an evidentiary hearing in order to make the requisite findings. However, it does not appear that the Standard-Times ever specifically requested an evidentiary hearing.

FN3. In so doing, the Attorney General was presumably guided by the practice of our prior cases in which the court that issued a challenged impoundment order is a named defendant. See generally Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Court Dep't, 403 Mass.

628 (1988), cert. denied, 490 U.S. 1066 (1989); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539 (1977).

FN4. S.J.C. Rule 1:15, as appearing in 401 Mass. 1301 (1998), governs impoundment procedure in the appellate courts. Rule 1:15 draws no distinction between criminal and civil appeals, providing that the Uniform Rules on Impoundment Procedure, "when used in conjunction with this rule, shall govern impoundment in both civil and criminal proceedings."

FN5. Because there was considerable doubt as to the proper appellate procedure in these circumstances, we may entertain this appeal under our superintendence powers pursuant to G.L. c. 211, § 3, "to resolve the doubt and settle a general rule." Ottaway Newspapers, Inc. v. Appeals Court, supra at 551.

FN6. As in the present case, the Attorney General has often appeared in litigation to represent the court issuing an impoundment order. See note 3, supra. This is merely an extension of the Attorney General's authority to represent judges and courts in litigation, see Casey v. Justice of the Superior Court, 229 Mass. 200, 202 (1918), and duty to represent the public interest. See Secretary of Admin. & Fin. v. Attorney Gen., 367 Mass. 154,

163 (1975).

FN7. Such notice should clearly specify that notice is being given as required by law and that the attorney general has the right to be heard.

FN8. Like the right to attend court proceedings, the right of the media to gain access to judicial records "derives entirely from the public's right of access," and the media "have neither a greater nor a lesser right ... than any other member of the public." Boston Herald, Inc. v. Superior Court Dep't of the Trial Court, 421 Mass. 502, 505 (1995).

FN9. There was a document containing the names of the empanelled jurors, as indicated by numerous references to "the jury list." Regardless whether this document contained the addresses of the jury members, they could easily be obtained from the list of the entire jury venire, which is a public record. See G.L. c. 234A, § 67, set forth at note 10, infra.

FN10. General Laws c. 234A, § 67, provides:

"Not later than ten days in advance of scheduled appearances by jurors, the office of jury commissioner shall send or deliver to the appropriate clerks of court a list of the grand and trial jurors expected to appear for service in

the respective courts. The list shall contain the name, address, and date of birth of each juror and such other information as the jury commissioner, with the approval of the committee, deems appropriate. Unless the court orders otherwise, the list shall be available upon request for inspection by parties, counsel, their agents, and members of the public."

FN11. We assume, without deciding, that, in this case the information sought by the Standard-Times constitutes a "judicial record."

FN12. Rule 7 of the Uniform Rules on Impoundment Procedure (2007) provides, in part: "An order of impoundment may be entered by the court, after hearing, for good cause shown and in accordance with applicable law. In determining good cause, the court shall consider all relevant factors, including, but not limited to, the nature of the parties and the controversy, the type of information and the privacy interests involved, the extent of the community interest, and the reason(s) for the request."

FN13. While we of course share the Standard-Times's concern that jury verdicts not be influenced by fear of reprisal, we do not believe that the solution is to subject jurors to publicity that can only enhance these fears.

FN14. To be sure, there are cases as well which recognize no right to jurors' information, or give trial judges unfettered discretion to impound it. See generally Gannett Co. v. State, 571 A.2d 735 (Del.1990), cert. denied, 495 U.S. 918 (1990); Newsday, Inc. v. Sise, 71 N.Y.2d 146 (1987), cert. denied, 486 U.S. 1056 (1988); Commonwealth v. Long, 871 A.2d 1262 (Pa.Super.2005), appeal granted in part, 584 Pa. 437-438 (2005).

SJC Denies Access to Clerk-Magistrate Hearings

The Massachusetts Supreme Judicial Court issued an opinion today that there is no First Amendment right of access to criminal "show cause" hearings before clerk-magistrates in the state's district courts. (I filed an amicus brief in this case on behalf of the Massachusetts Newspaper Publishers Association.) Following is the full text of the opinion.

EAGLE-TRIBUNE PUBLISHING COMPANY
vs.
CLERK-MAGISTRATE OF THE LAWRENCE DIVISION OF THE DISTRICT COURT DEPARTMENT & others. [FN1]

SJC-09665
February 5, 2007. - March 28, 2007.
Supreme Judicial Court, Superintendence of inferior courts. District Court, Clerk-Magistrate. Practice, Criminal, Show cause hearing. Constitutional Law, Access to court proceedings.

CIVIL ACTION commenced in the Supreme Judicial Court for the county of Suffolk on November 4, 2005.

The case was heard by Ireland, J.

Peter J. Caruso (Peter J. Caruso, II, with him) for the plaintiff.

Maura D. McLaughlin, Assistant Attorney General, for the defendants.

Robert J. Ambrogi, for Massachusetts Newspaper Publishers Association, amicus curiae, submitted a brief.

Present: Greaney, Spina, Cowin, & Cordy, JJ.

COWIN, J.

In this appeal, we consider whether there exists under the First Amendment to the United States Constitution a right of public access to "show cause" hearings that precede the initiation of criminal proceedings in certain cases. We conclude that there is not. [FN2]

Background. For purposes of the present appeal, the facts are not in dispute. In October, 2005, a twenty year old woman was stabbed at a nightclub in Lawrence, after she was allegedly served alcohol despite being under the legal drinking age. This incident attracted significant publicity. Soon after, the Lawrence police department filed an application for issuance of criminal process in the District Court against the nightclub's corporate owner. Pursuant to G.L. c. 218, § 35A, a "show cause" hearing before a clerk-magistrate was scheduled, which the court indicated would be closed to the public. The Eagle-Tribune Publishing Company (the Eagle-Tribune), publisher of the Eagle-Tribune newspaper, sought access to the show cause hearing and filed a "Motion to Open Preliminary Probable Cause Hearings to the Press and to the Public." The clerk-magistrate denied the motion, [FN3] as well as the Eagle-Tribune's subsequent motion for reconsideration. The Eagle-Tribune sought relief from a single justice of this court pursuant to G.L. c. 211, § 3, and the Attorney General filed an opposition. The single justice denied relief, and the Eagle-Tribune timely appealed to the full court. Because there is no First Amendment right of public access to show cause hearings, the single justice did not abuse his discretion or commit other error in denying the relief sought.

Show cause hearings. As this case turns largely on the nature of criminal show cause hearings in Massachusetts, we describe some of the aspects of such hearings as they have developed through statute, case law, and the District Court Standards of Judicial Practice: The Complaint Procedure (1975) (Complaint Standards). [FN4]

Many criminal prosecutions begin with an arrest, followed by the filing of an application for a complaint against the arrested person by a law enforcement officer. See standards 2:00-2:04 of the Complaint Standards. However, prosecution may also be commenced by the filing of an application for issuance of criminal process against an individual or entity by a private citizen or a law enforcement officer. [FN5] See standards 3:00-3:26 of the Complaint Standards. In cases where criminal process is sought against a person not under arrest, G.L. c. 218, § 35A, provides for a show cause hearing at which the accused is given "an opportunity to be heard personally or by counsel in opposition to the issuance of any process." [FN6], [FN7]

When first enacted in 1943, G.L. c. 218, § 35A, merely "gave a statutory basis for a practice sometimes ... followed by the judge or clerk of allowing the attorney for the prospective defendant to state relevant circumstances which might be thought to bear on the propriety of the issuance of process." Commonwealth v. Riley, 333 Mass. 414, 416 (1956). The hearing is "held for the protection and benefit of the respondent named in the application," Victory Distribs., Inc. v. Ayer Div. of the Dist. Court Dep't, 435 Mass. 136, 142 (2001), and is not required by either the Federal Constitution or the Massachusetts Declaration of Rights, Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Court Dep't, 439 Mass. 352, 355 n. 3 (2003).

The show cause hearing is held before a clerk-magistrate, who need not be an attorney. The hearing's legal function is to determine whether there is probable cause to issue criminal process against the accused. See G.L. c. 218, § 35A; commentary to standard 3:00 of the Complaint Standards. However, "[t]he implicit purpose of the [§ ] 35A hearings is to enable the [clerk-magistrate] to screen a variety of minor criminal or potentially criminal matters out of the criminal justice system through a combination of counseling, discussion, or threat of prosecution--techniques which might be described as characteristic, in a general way, of the process of mediation." Snyder, Crime and Community Mediation--The Boston Experience: A Preliminary Report on the Dorchester Urban Court Program, 1978 Wis. L.Rev. 737, 746-747, quoted with approval in Gordon v. Fay, 382 Mass. 64, 69-70 (1980). See Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Court Dep't, supra at 356; Commonwealth v. Clerk of the Boston Div. of the Juvenile Court Dep't, 432 Mass. 693, 702 & n. 12 (2000); Commonwealth v. Cote, 15 Mass.App.Ct. 229, 235 (1983). Thus, "a show cause hearing ... will often be used by a clerk-magistrate in an effort to bring about an informal settlement of grievances, typically relating to minor matters involving 'the frictions and altercations of daily life.' " Commonwealth v. Clerk of the W. Roxbury Div. of the Dist. Court Dep't, supra at 356, quoting Bradford v. Knights, 427 Mass. 748, 751 (1998). [FN8]

Right of public access to show cause hearings. [FN9] We review the decision of a single justice under G.L. c. 211, § 3, for abuse of discretion or other error of law. Victory Distribs., Inc. v. Ayer Div. of the Dist. Court Dep't, supra at 137. As the Eagle-Tribune has not argued any basis for its right to access other than the Federal Constitution, our analysis is limited to whether there exists under the First Amendment a right of public access to show cause hearings. [FN10]

The First Amendment confers a qualified right of public access to certain judicial proceedings. [FN11] See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9 (1986) (Press-Enterprise II ); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509-10 (1984) (Press-Enterprise I ). For this right of access to apply to a particular proceeding, the proceeding must satisfy a two-part test of "experience" and "logic": (1) the type of proceeding must have a historic tradition of openness, and (2) public access must "play[ ] a significant positive role in the functioning of the particular process in question." Press-Enterprise II, supra at 8. See WBZ-TV4 v. Executive Office of Labor, 414 Mass. 767, 770 (1993). In applying this test, the United States Supreme Court has recognized that certain proceedings, such as trials, have historically been open to the public and benefit from public access. Press-Enterprise II, supra at 9. Others, however, notably grand jury proceedings, have always been secret and "would be totally frustrated if conducted openly." Id. If the tests of experience and logic are met and a First Amendment right of access to a type of proceeding is found, such a proceeding may only be closed to the public on specific findings that "closure is essential to preserve higher values and is narrowly tailored to serve that interest." Id., quoting Press-Enterprise I, supra at 510.

a. "Experience." Show cause hearings fail the "experience" test because there is no tradition of public access to this type of proceeding. Since their beginnings as informal opportunities for the accused to be heard on the question whether to issue criminal process, see Commonwealth v. Riley, 333 Mass. 414, 416 (1956), show cause hearings have always been "[p]resumptively ... private and as informal as circumstances will permit." Standard 3:15 of the Complaint Standards. Of course, the "experience" test does not turn merely on the label given the proceeding, Press-Enterprise II, supra at 7; thus, we must also look to whether any analogous proceedings have historically been open to the public, In re Boston Herald, Inc., 321 F.3d 174, 184 (1st Cir.2003). [FN12] However, the parties have not called our attention to, nor have we located, any proceeding resembling a Massachusetts show cause hearing to which the public enjoys a right of access.

The Eagle-Tribune argues strenuously that show cause hearings are the equivalent of the preliminary criminal hearings to which the Supreme Court has found a First Amendment right of public access. See Press-Enterprise II, supra at 13 (finding public right of access to California preliminary hearings). However, this analogy fails on multiple levels. The Press-Enterprise II decision involved preliminary hearings held after a defendant has already been charged with a crime to determine whether sufficient evidence exists to bring the person to trial. See Press-Enterprise II, supra at 12. In holding that such proceedings, as conducted in California, implicate a First Amendment right of public access, the Supreme Court relied on the fact that they "function[ ] much like a full-scale trial," id. at 7, in that "[t]he accused has the right to personally appear ..., to be represented by counsel, to cross-examine hostile witnesses, to present exculpatory evidence, and to exclude illegally obtained evidence," id. at 12.

By contrast, a show cause hearing, which takes place before any criminal prosecution has begun, bears little resemblance to a trial. The rules of evidence that obtain at a trial do not apply. See Commonwealth v. Cote, 15 Mass.App.Ct. 229, 236 (1983) (noting no "proscription against consideration of hearsay at this stage of criminal proceedings"). The accused has no right to appointed counsel at a show cause hearing, only a right to have an attorney present if one is already retained. Cf. Coleman v. Alabama, 399 U.S. 1, 9- 10 (1970) (Federal Constitution requires appointment of counsel for indigent criminal defendants at preliminary hearings); Myers v. Commonwealth, 363 Mass. 843, 847-848 (1973). While the accused has the right "to be heard personally or by counsel," G.L. c. 218, § 35A, counsel is "permitted to participate only to the extent that the magistrate feels it will be materially helpful in deciding whether process should issue." Commentary to standard 3:15 of the Complaint Standards. Thus, an accused at a show cause hearing does not have a right to cross-examine the witnesses against him. See Commonwealth v. Riley, supra at 415-416.

As the Attorney General points out, the proceeding in Massachusetts that corresponds to the preliminary hearing at issue in Press-Enterprise II is not a show cause hearing under G.L. c. 218, § 35A, but rather, a probable cause hearing under G.L. c. 276, § 38. [FN13] See standards 3:00-3:04 of the Standards of Judicial Practice: Trials and Probable Cause Hearings, (1981) (Probable Cause Standards). See also Commonwealth v. Riley, supra at 416 (distinguishing show cause hearings from probable cause hearings). Like the preliminary hearings that the Supreme Court has found to require public access (and unlike a show cause hearing), a probable cause hearing takes place after an individual is already charged with a crime. [FN14] See G.L. c. 276, § 38. Its purpose is to determine whether there is sufficient admissible evidence to bind the defendant over for trial in the Superior Court, [FN15] see Myers v. Commonwealth, supra at 846-848, a substantively higher standard of "probable cause" than that required at show cause hearings, see id. at 848-849. [FN16] See also standard 3:01 of the Probable Cause Standards. The probable cause hearing is a "critical stage" of the criminal process at which the defendant has the right to appointment of counsel. Myers v. Commonwealth, supra at 847-848, quoting Coleman v. Alabama, supra at 9. See Commonwealth v. Britt, 362 Mass. 325, 330-331 (1972). The defendant also has the right to present evidence and cross-examine witnesses. Myers v. Commonwealth, supra at 855-856. The rules of evidence are fully applicable and a finding of probable cause "must be based on competent testimony which would be admissible at trial." Id. at 849 n. 6. See standard 3:02 of the Probable Cause Standards.

Show cause hearings are not like probable cause hearings. They are more akin to grand jury proceedings, which likewise precede the formal initiation of criminal prosecution and employ the same "probable cause to arrest" standard. See note 16, supra; Commonwealth v. O'Dell, 392 Mass. 445, 450 (1984); Myers v. Commonwealth, supra at 848. See also commentary to standard 1:00 of the Complaint Standards ("Clerks and judges of the District Court, in effect, serve a grand jury-type function to determine whether a person is to be involuntarily cast in the role of a defendant in a criminal case"). The Supreme Court has acknowledged that grand jury proceedings require secrecy in order to function. Press-Enterprise II, supra at 9. Show cause hearings may also be analogized to the complaint procedure for arrested individuals, in which a law enforcement officer swears to the underlying facts before a clerk-magistrate who must determine probable cause. See G.L. c. 276, § 22; standard 2:03 of the Complaint Standards. This is an ex parte proceeding at which not even the accused, let alone the public, is present. See Commonwealth v. Smallwood, 379 Mass. 878, 884-885 (1980). Finally, to the extent that show cause hearings often function as informal dispute resolution sessions akin to court-facilitated mediation, they share in a tradition not of openness, but of privacy.

b. "Logic." Although the two parts of the Press-Enterprise test are conjunctive and failure of the "experience" test is fatal to a First Amendment claim, see WBZ-TV4 v. Executive Office of Labor, 414 Mass. 767, 770 (1993), we note that show cause hearings also do not meet the "logic" test, because public access would not significantly aid their functioning. The show cause hearing is "held for the protection and benefit" of the accused, Victory Distribs., Inc. v. Ayer Div. of the Dist. Court Dep't, 435 Mass. 136, 142 (2001), and allows the clerk-magistrate to screen out baseless complaints with minimal harm to the accused's reputation; this purpose would be frustrated by public access to the hearings. Furthermore, the ability of clerk-magistrates to resolve commonplace disputes without the need for criminal prosecution could be compromised by hearings open to the public, which may inflame the animosities involved.

Allowing public access to show cause hearings. While the First Amendment does not require that a Massachusetts show cause hearing be open to the public, there may be circumstances in which an open hearing is appropriate. Standard 3:15 of the Complaint Standards states only that show cause hearings are "presumptively" closed, not that they should always be closed. Indeed, standard 3:16 of the Complaint Standards provides:

"If the application [for issuance of process] is one of special public significance, and if in the opinion of the magistrate the legitimate interest of the public outweighs the right of privacy in the accused, the hearing may be open to the public, and should be conducted in the formal atmosphere of a courtroom."

Where an incident has already attracted public attention prior to a show cause hearing, the interest in shielding the participants from publicity is necessarily diminished, while the public's legitimate interest in access is correspondingly stronger.

In deciding whether to allow access to a particular show cause hearing, clerk-magistrates should consider not only the potential drawbacks of public access, but its considerable benefits: [FN17]

"It is desirable that [judicial proceedings] should take place under the public eye ... because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed."

Republican Co. v. Appeals Court, 442 Mass. 218, 222 (2004), quoting Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (Holmes, J.). The transparency that open proceedings afford may be especially important if a well-publicized show cause hearing results in a decision not to bring criminal charges, thereby ending the matter. In such cases, the public may question whether justice has been done behind the closed doors of the hearing room. This is not to say that every case that may attract public attention necessarily requires a public show cause hearing; for instance, "[t]he sole fact that the person complained against is a public official or otherwise well known is not in and of itself ... reason for the hearing to be public." Commentary to standard 3:16 of the Complaint Standards. Of course, relief from a clerk-magistrate's decision in extraordinary cases may be sought from a single justice of this court.

Conclusion. The order of the single justice denying relief under G.L. c. 211, § 3, is affirmed.

So ordered.

FN1. First Justice of the Lawrence Division of the District Court Department; Chief Justice of the District Court Department.

FN2. We acknowledge the amicus brief of the Massachusetts Newspaper Publishers Association.

FN3. In brief handwritten findings made after a hearing on the motion, the clerk-magistrate stated that the decision was "based on the [accused's] best interest as a private corporation which outweigh[s] any standing the press or public may have at such a preliminary stage of [the] proceedings."

FN4. While lacking the force of law or rules, the Standards of Judicial Practice: The Complaint Procedure (1975) (Complaint Standards) are "administrative regulations promulgated by the Chief Justice of the District Court that [are] treated as statements of desirable practice" to be followed in the District Courts. Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Court Dep't, 439 Mass. 352, 357 (2003). See commentary to standard 1:00 of the Complaint Standards.

FN5. The Complaint Standards carefully distinguish between an "application for complaint," which is a request for a formal written charge against an individual who has already been arrested, and an "application for issuance of criminal process," which is a request for the issuance of an arrest warrant or

summons. See standard 1:01 of the Complaint Standards. We do likewise.

FN6. General Laws c. 218, § 35A, provides, in relevant part:

"If a complaint is received by a district court, or by a justice, associate justice or special justice thereof, or by a clerk, assistant clerk, temporary clerk or temporary assistant clerk thereof under section 32, 33 or 35, as the case may be, the person against whom such complaint is made, if not under arrest for the offense for which the complaint is made, shall, in the case of a complaint for a misdemeanor or a complaint for a felony received from a law enforcement officer who so requests, and may, in the discretion of any said officers in the case of a complaint for a felony which is not received from a law enforcement officer, be given an opportunity to be heard personally or by counsel in opposition to the issuance of any process based on such complaint unless there is an imminent threat of bodily injury, of the commission of a crime, or of flight from the commonwealth by the person against whom such complaint is made....

"The court, or said officer thereof, may upon consideration of the evidence, obtained by hearing or otherwise, cause process to be issued unless there is no probable cause to believe that the person who is the object of the complaint has committed the offense charged...."

FN7. The statute previously provided for show cause hearings only for misdemeanors. See Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Court Dep't, supra at 354-356. A 2004 amendment expanded show cause hearings to felonies in certain situations as well. See St.2004, c. 149, § 200.

FN8. A clerk-magistrate's determination that probable cause does not exist for the issuance of criminal process may be appealed by the Commonwealth. Commonwealth v. Clerk of the Boston Div. of the Juvenile Court Dep't, 432 Mass. 693, 701 (2000).

FN9. We note at the outset the Attorney General's representation that the show cause hearing to which the Eagle-Tribune sought access has already taken place, rendering the present appeal moot. This matter is, however, "capable of repetition, yet evading review." Blake v. Massachusetts Parole Bd., 369 Mass. 701, 708 (1976). Thus, we proceed to the merits.

FN10. In the course of the proceedings below, the Eagle-Tribune also claimed rights under the analogous provision of the Massachusetts Declaration of Rights, art. 16, but has not raised any such argument on appeal. In any event, "the criteria which have been established by the United States Supreme

Court for judging claims arising under the First Amendment ... are equally appropriate to claims brought under cognate provisions of the Massachusetts Constitution." Opinions of the Justices to the House of Representatives, 387 Mass. 1201, 1202 (1982), quoting Colo v. Treasurer & Receiver Gen., 378 Mass. 550, 558 (1979).

FN11. The right of members of the media to access judicial proceedings "derives entirely from the public's right of access," and the media "have neither a greater nor a lesser right ... than any other member of the public." Boston Herald, Inc. v. Superior Court Dep't of the Trial Court, 421 Mass. 502, 505 (1995). See Nixon v. Warner Communications, Inc., 435 U.S. 589, 609 (1978).

FN12. Because the test looks to national, rather than only local traditions of openness, see El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147, 150 (1993), we seek analogies both in Massachusetts and in other jurisdictions.

FN13. Although the Eagle-Tribune uses the term "probable cause hearing" to refer to both types of proceedings, this is misleading. As commentary to standard 3:00 of the Standards of Judicial Practice: Trials and Probable Cause Hearings (1981) explains, "[t]he 'probable cause hearing' discussed in this

standard should be distinguished from a 'show cause hearing' for the issuance of process...." The two kinds of hearing involve distinct standards of "probable cause." See commentary to standard 3:17 of the Complaint Standards ("Probable cause for the issuance of process should not be confused with probable cause to bind over. The latter is an essentially different standard applied at a later stage of the criminal justice procedure ..."). See also note 16, infra.

FN14. General Laws c. 276, § 38, provides:

"The court or justice before whom a person is taken upon a charge of crime shall, as soon as may be, examine on oath the complainant and the witnesses for the prosecution, in the presence of the defendant, relative to any material matter connected with such charge. After the testimony to support the prosecution, the witnesses for the prisoner, if any, shall be examined on oath, and he may be assisted by counsel in such examination and in the cross examination of the witnesses in support of the prosecution."

FN15. General Laws c. 218, § 30, provides:

"[District courts] shall commit or bind over for trial in the superior court persons brought before them who appear to be guilty of crimes not within their final jurisdiction, and may so commit or bind over persons brought before them

who appear to be guilty of crimes within their final jurisdiction...."

"Defendants are held for trial only if it appears ... (1) 'that a crime has been committed' and (2) 'that there is probable cause to believe the prisoner guilty' " (emphasis in original). Corey v. Commonwealth, 364 Mass. 137, 141 (1973), quoting G.L. c. 276, § 42.

FN16. At a show cause hearing, the clerk-magistrate determines whether process should issue based on the probable cause to arrest standard, see Paquette v. Commonwealth, 440 Mass. 121, 131-132 (2003), cert. denied, 540 U.S. 1150 (2004), which requires only facts "sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offence." Myers v. Commonwealth, 363 Mass. 843, 848 (1973), quoting Commonwealth v. Stevens, 362 Mass. 24, 26 (1972). See commentary to standard 3:17 of the Complaint Standards. By contrast, at a probable cause hearing, the standard is the more stringent one applicable to a motion for a required finding of not guilty, where a judge must "view the case as if it were a trial and he were required to rule on whether there is enough credible evidence to send the case to the jury." Myers v. Commonwealth, supra at 850.

FN17. In all cases in which a request for an open hearing is made, we

encourage clerk-magistrates to make a written record of the reasons for their decision, as was done here.

Bar Discipline Docs Closed to Public

Documents related to attorney discipline in Massachusetts do not fall under the state's public-records law, the Supreme Judicial Court ruled today. The public-records law applies only to the executive branch of government, while the Board of Bar Overseers -- the entity that oversees attorney discipline -- is under the judicial branch, the SJC said.

"This court has construed strictly the scope of G.L. c. 4, § 7, Twenty-sixth, to preclude the public disclosure of documents held by entities other than those specifically delineated in the statute. ... Neither the Legislature nor the Judiciary are expressly included."

The petitioner, Michael L. Kettenbach, had requested all BBO and bar counsel documents relating to a former state judge, who resigned from the bench and assumed inactive bar status after having been found to have violated canons of judicial ethics.

Today's decision is Kettenbach v. Board of Bar Overseers, SJC-09760.

Podcast: Constitutions and Counter-terrorism

On our legal-affairs podcast Lawyer2Lawyer this week, we have a fascinating show looking at international constitutional law and its relation to global counter-terrorism efforts. Joining us to discuss this are Amos N. Guiora, professor of law at Case Western Reserve University School of Law and director of the Institute for Global Security Law and Policy, and Tom Zwart, dean of international studies at Utrecht School of Law in the Netherlands.

Download or listen to the show here.

Sen. Kerry's Support for Shield Law

U.S. Sen. John Kerry spoke Friday to the New England Newspaper Association and announced his support for a strengthened Freedom of Information Act. (I assume he is referring to S. 849.) As his campaign blog reports, the announcement drew a fair amount of comment in the blogosphere.

I was present at Kerry's speech. His comments on FOIA actually came in response to my question to him about whether he supports a federal shield law for journalists. Yes, he answered.

I was glad to hear this, until I got back to my computer and realized that my question was embarrassingly uninformed. Kerry had been one of the formal cosponsors of S. 1419, the shield bill introduced by Sen. Richard G. Lugar in 2005.

At least now I know.

Register - Quickly! - For this Conference

Today is the last day to save 25 percent on registration for The New(s) England Revolution: From Politics to Courtroom to Classroom, an April 7 conference in Lowell, Mass., for bloggers, journalists, teachers, lawyers, public officials, engaged citizens, and anyone else who is interested. Just $28 if you register today for this day-long program -- and that includes breakfast and lunch! Looks like a great line-up of programs and speakers.

Town May Enact Open Meeting Fines

Reporter Mary Carey writes in the Amherst Bulletin that the Massachusetts town may establish fines for members of local boards who violate the open meeting law. The state law imposes no such fines on individual board members. A bill promoted by the Massachusetts Newspaper Publishers Association would authorize courts to impose such fines. Carey writes:

"Town Meeting member Larry Kelley said Amherst should establish its own fines -- $50 for a first offense, $100 for the second and $500 for the third offense. He has collected enough signatures to put the question on the May 7 Town Meeting warrant."

Open meeting battle rages on

From today's Springfield Republican: Open meeting battle rages on:

"Testing the limits of the state Open Meeting Law has practically been a hobby for public officials since the right-to-know legislation was rolled out three decades ago."

Sunshine Week coverage kicks off

It is Sunshine Week. Here is some of the coverage so far by Massachusetts newspapers:

• Fight for truth being fought daily
• Plenty of Sunshine Healthy for Democracy
• Sunshine Week spotlights public access, involvement
• Congress exempt from access law
• Municipal Web Sites are Clicking
• Editorial: Government in the Dark
• A Government Truly of People
• Your Right to Know
• Too Much Secrecy

More on Journalists as G-Men

Last week, I posted this item: Journalists are not G-Men, about the government's efforts to get its hands on videographer Josh Wolf's footage of a demonstration. Coincidentally, the Los Angeles Times yesterday had this headline, Let's keep reporters from being G-men (free reg. required), about the unprecedented line-up of journalists as witnesses in the Scooter Libby trial.

WA Senate Passes Reporter Shield Law

Looks like Washington state may soon have a shield law. Today, the state Senate voted 41-7 in favor of the law, a month after the House unanimously passed a similar measure. According to an Associated Press report published in The Seattle Times, the bill would create an absolute privilege protecting confidential sources.

Podcast: Here Come the Judges

Judges were once practicing lawyers, so what, if anything, changes for them once they go on the bench? And how do they view the lawyers who now appear before them? We discuss these and other questions with a panel of three judges on this week's legal-affairs podcast Lawyer2Lawyer. Our guests for this episode:

• Justice William W. Bedsworth, associate justice for the California Fourth District Court of Appeal.
• William F. Dressel, president of the National Judicial College in Reno, Nev., and former judge in Colorado's 8th Judicial District.
• Judge Steven Leben, president of the American Judges Association and a District Court judge in Johnson County, Kan.
  

Download or listen to the program here.

Journalists are not G-Men

Kudos to Howard Kurtz for airing the question of whether jailed videographer Josh Wolf is a journalist in his Washington Post piece today, Jailed Man Is A Videographer And a Blogger but Is He a Journalist? It is a question too many too quickly skate over. But Kurtz quickly shifts his focus to a very different question -- that of Wolf's rationale for withholding the video. In so doing, he wrongly shifts the burden from the persecutor to the persecuted.

Journalists are not agents of the government. Reporters, photographers and videographers should not be required to operate under the assumption that they are collecting evidence for later use by law enforcement. They should be free to choose the quotes or images they use in their reporting and to keep their notes or outtakes to themselves.

The government has offered no good reason for why it should view Wolf's tapes -- or even for why it wants to. The burden should not be on Wolf to justify his nondisclosure. The burden should be on the government to justify what right it has to demand access to his footage. It is not for Wolf to say why he does not want to surrender the tapes, it is for the government to explain why he should. Do we want a nation in which the government claims right to demand access to anyone's pictures and video?

None of which, it strikes me, has any bearing on the question of whether Wolf is a journalist. Wolf's lawyer, Martin Garbus, says it well in Kurtz's piece: "I would define a journalist as someone who brings news to the public." Enough said. Wolf fits the bill.

There is an implication in the article that perhaps Wolf does not "qualify" as a journalist because he is, by his own description, an activist. That, of course, would mean that Thomas Paine, William Lloyd Garrison and Isaiah Thomas were not journalists.

Kurtz is right that this is not a confidential-source case. But there is a principle at stake, and it involves the right of journalists to operate as watchdogs of government, not its agents.

New Site Shines Light on Congress

At my LawSites blog today, I write about OpenCongress, a new site that draws on a variety of resources, from official government sites to blogs, to provide an in-depth view of "the real story behind what's happening in Congress.

First Amendment Lets Search Sites Reject Ads

From CNET's Yahoo Blog:

"A federal court has ruled that search engines have a First Amendment right to reject ads as part of their protected right to speak or not speak. The U.S. District Court in Delaware has effectively shut down a lawsuit filed by Christopher Langdon, who had attempted unsuccessfully to sell ads on Google, Yahoo and Microsoft's search Web sites.

"Langdon has several Web sites that purport to expose fraud among North Carolina state officials and to discuss atrocities committed by the Chinese government, according to the court filings. Allegedly, Google rejected Langdon's ads because they attacked individuals, MSN ignored the request and Yahoo denied the request saying it only takes ads from sites it hosts. So Langdon sued them on claims of fraud."

Read the full decision.

Podcast: Libby Trial and Freedom of the Press

The First Amendment and freedom of the press are front and center in the trial of Scooter Libby. This week on the legal affairs podcast Lawyer2Lawyer (formerly Coast to Coast), we discuss the trial, shield laws and judicial attitutes towards free speech and a free press. My cohost J. Craig Williams and I welcome guests Ed Carter, a lawyer and assistant professor of communications at Brigham Young University who recently completed a study of Supreme Court free speech rulings, and Mark Obbie, director of the Carnegie Legal Reporting Program at the Newhouse School.

• Download the MP3 file.
• Listen to Windows Media stream.

SJC hears appeal in judge's libel case

From Associated Press via the Worcester Telegram & Gazette:

"The Boston Herald on Thursday asked the state's highest court to toss out a $2.1 million verdict won by a Superior Court judge who said the newspaper libeled him by reporting he made insensitive comments about a 14-year-old rape victim.

"In February 2005, a jury found the newspaper had libeled Judge Ernest Murphy in a series of articles. Murphy maintained a Herald reporter misquoted him as telling lawyers involved in a case about the rape victim: 'Tell her to get over it.' Murphy denied ever making the statement.

"An attorney for the Herald and its reporter, David Wedge, said Thursday that Wedge did everything he could to ensure the stories were accurate, including twice trying to get comment from the judge himself. The attorney, Bruce Sanford, said Wedge had several sources who attributed the comment to Murphy."

The video of the oral argument will be posted here.

Worcester Magazine on open meetings

In the cover story in the current issue of Worcester Magazine, Behind Closed Doors: How Politicians Work Around the Public's Right to Know, writer Scott Zoback does a great job of laying out politicians' increasing disregard of the state's open meeting law. He writes:

"While the days of making political decisions with a suitcase of cash and a pack of Cubans in the back of a bar may be behind us, the truth is that a large number of the decisions, negotiations and conversations that move forward political agendas in Central Massachusetts are done in private, behind closed doors."

I was among those interviewed for the article and Zoback talks about the open meeting reform bill filed by the Massachusetts Newspaper Publishers Association, of which I am executive director.

SJC hears arguments in access case

The Massachusetts Supreme Judicial Court heard arguments Monday in Eagle-Tribune Publishing Company v. Abascal, a case involving media access to clerk-magistrate hearings in the state District Court. Streaming video of the oral argument is available at this link. (I filed an amicus brief in this case on behalf of the Mass. Newspaper Publishers Association.)

A new name for our legal-affairs podcast

Our weekly legal-affairs podcast has a new name. The podcast formerly known as Coast to Coast is now called Lawyer2Lawyer. As our producers at the Legal Talk Network explain in a programming note this week, we wanted to acknowledge our expanding and global audience of listeners beyond the coasts. Nothing else has changed. If you subscribe to the RSS feed or receive the show via iTunes, no changes are required. And my cohost J. Craig Williams and I will continue to interview lawyers from all over the world about timely topics in law.

Mass. bill would shield reporters' sources

House and Senate bills to protect against compelled disclosure of news sources have been filed in Massachusetts by Rep. Alice H. Peisch and Sen. Cynthia S. Creem. The identical bills were originally drafted by an ad hoc committee of media and legal professionals. (I serve on that committee on behalf of the Massachusetts Newspaper Publishers Association, which has endorsed the bill, and I helped draft the bill.)

Other legislators who signed on as co-sponsors are: Sen. Joan M. Menard (D-Somerset), Sen. Scott P. Brown(R- Wrentham), Sen. Mark C. Montigny (D-New Bedford), Sen. Stephen M. Brewer (Barre-Worcester County), Sen. James E. Timilty (Norfolk-Bristol), Rep. Garrett J. Bradley (Hingham) and Rep. James M. Murphy (Weymouth). (Additional sponsors may be added until Jan. 22.)

The text of the bills is not yet available on the legislature's Web site. The House bill has been docketed as HD 1130. The Senate bill has been docketed as SD 00847. The bills read as follows:

AN ACT to establish protections against compelled disclosure of sources, and news or information, by persons providing services for the news media.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. SHORT TITLE.

This Act may be cited as the `Free Flow of Information Act'.

SEC. 2. DEFINITIONS.

In this Act:

(1) COVERED PERSON- The term `covered person' means a person who--
(A) engages in the gathering of news or information; and
(B) has the intent, at the beginning of the process of gathering news or information, to disseminate the news or information to the public.
(2) NEWS OR INFORMATION- The term `news or information' means written, oral, pictorial, photographic, or electronically recorded information or communication concerning local, national, or worldwide events, or other matters.
(3) NEWS MEDIA- The term `the news media' means--
(A) a newspaper;
(B) a magazine;
(C) a journal or other periodical;
(D) radio;
(E) television;
(F) any means of disseminating news or information gathered by press associations, news agencies, or wire services (including dissemination to the news media described in subparagraphs (A) through (E)); or
(G) any printed, photographic, mechanical, or electronic means of disseminating news or information to the public.

SEC. 3. COMPELLED DISCLOSURE PROHIBITED.

(a) IN GENERAL- Except as provided in section 4, no entity of the judicial, legislative, or executive branch of the Commonwealth with the power to issue a subpoena or provide other compulsory process shall compel any covered person who is providing or has provided services for the news media to disclose--
(1) the source of any news or information procured by the person, or any information that would tend to identify the source, while providing services for the news media, whether or not the source has been promised confidentiality; or
(2) any news or information procured by the person, while providing services for the news media, that is not itself communicated in the news media, including any--
(A) notes;
(B) outtakes;
(C) photographs or photographic negatives;
(D) video or sound tapes;
(E) film; or
(F) other data, irrespective of its nature, that is not itself communicated in the news media.
(b) SUPERVISORS, EMPLOYERS, AND PERSONS ASSISTING A COVERED PERSON- The protection from compelled disclosure described in subsection (a) shall apply to a supervisor, employer, or any person assisting a person covered by subsection (a).
(c) RESULT- Any news or information obtained in violation of the provisions of this section shall be inadmissible in any action, proceeding, or hearing before any entity of the judicial, legislative, or executive branch of the Commonwealth.

SEC.4. COMPELLED DISCLOSURE TO PROTECT PUBLIC SECURITY AGAINST TERRORIST ACTS

(1) A state entity may not compel a covered person to testify or produce any document in any proceeding or in connection with any issue arising under state law unless ... (a) disclosure of the identity of such a source is necessary to prevent imminent and actual harm to public security from acts of terrorism; (b) compelled disclosure of the identity of such a source would prevent such harm; and (c) the harm sought to be redressed by requiring disclosure clearly outweighs the public interest in protecting the free flow of information.

SEC. 5. COMPELLED DISCLOSURE PERMITTED.

(a) NEWS OR INFORMATION- A court may compel disclosure of news or information described in section 3(a)(2) and protected from disclosure under section 3 if the court finds, after providing notice and an opportunity to be heard to the person or entity from whom the news or information is sought, that the party seeking the news or information established by clear and convincing evidence that--
(1) the news or information is critical and necessary to the resolution of a significant legal issue before an entity of the judicial, legislative, or executive branch of the Commonwealth that has the power to issue a subpoena;
(2) the news or information could not be obtained by any alternative means; and
(3) there is an overriding public interest in the disclosure.
(b) SOURCE- A court may not compel disclosure of the source of any news or information described in section 3(a)(1) and protected from disclosure under section 3.

SEC. 6. ACTIVITIES NOT CONSTITUTING A WAIVER.

The publication by the news media, or the dissemination by a person while providing services for the news media, of a source of news or information, or a portion of the news or information, procured in the course of pursuing professional activities shall not constitute a waiver of the protection from compelled disclosure that is described in section 3.

Mass. publishers file open meeting reform bill

Rep. Stephen Kulik of South Deerfield, Mass., has filed a bill drafted by the Massachusetts Newspaper Publishers Association to strengthen the enforcement provisions of the state's open meeting laws. The bill, which has been docketed as HD 2937, would authorize courts to impose civil fines of $500 on government officials who violate the law and to award attorneys' fees to citizens who bring actions to enforce the law. (Note that I am MNPA executive director.) Other legislators who have so far signed on as co-sponsors are: Rep. Peter V. Kocot of Northampton, Rep. John W. Scibak of South Hadley, Rep. William M. Strauss of Mattapoisett, Sen. Stephen M. Brewer of Barre, Rep. Jay Barrows of Mansfield, and Rep. David P. Linsky of Natick.

The text of the bill as filed provides:

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 23B of Chapter 39 of the General Laws, as appearing in the 2002 Official Edition, is hereby amended by striking the 14th paragraph and inserting in its place the following paragraph:—

The court may impose a civil fine against the governmental body of up to one thousand dollars and a civil fine of up to five hundred dollars against each attending member of the governmental body for each meeting held in violation of this section. The fine shall not be imposed against any member of the governmental body who is recorded in opposition to the government act that is found in violation of the open meeting law. When a court finds that a meeting was held in violation of this section, it shall award reasonable attorney’s fees and costs against such governmental body. In addition, the court may assess reasonable attorney’s fees and costs against such governmental body where the court finds that:

1. after receiving notice of the filing of a complaint authorized by this section, the governmental body opens to the public any meeting or opens to the public the records of any such meeting, and

2. the requested meeting or public record are described in the complaint, and

3. the requested meeting or public record had been requested in writing by the complainant before filing the complaint, and

4. before the complaint was filed, the governmental body or custodian of the record had refused to open to the public the requested meeting or to make the requested public record available to the complainant.

SECTION 2. Section 11A ½ of Chapter 30A, of the General Laws, as appearing in the 2002 Official Edition, is hereby amended by adding thereto as the last paragraph reading as follows:

The court may impose a civil fine against the governmental body of up to one thousand dollars and a civil fine of up to five hundred dollars against each attending member of the governmental body for each meeting held in violation of this section. The fine shall not be imposed against any member of the governmental body who is recorded in opposition to the government act that is found in violation of the open meeting law. When a court holds that a meeting was held in violation of this section, it shall award reasonable attorney’s fees and costs against such governmental body. In addition, the court may assess reasonable attorney’s fees and costs against such governmental body where the count finds that:

1. after receiving notice of the filing of a complaint authorized by this section, the governmental body opens to the public any meeting or opens to the public the records of any such meeting, and

2. the requested meeting or public record are described in the complaint, and

3. the requested meeting or public record had been requested in writing by the complainant before filing the complaint, and

4. before the complaint was filed, the governmental body or custodian of the record had refused to open to the public the requested meeting or to make the requested public record available to the complainant.

Meeting closed to discuss open meetings

This is priceless: As the Worcester Telegram reports, when selectmen in Lunenburg, Mass., met to discuss a complaint alleging that several of them had violated the state Open Meeting Law, they did so in closed session. After meeting in executive session for 1.5 hours, they announced they had "come to no conclusion."

In fairness, the Open Meeting Law does permit closed meetings to discuss litigation strategy, but only when an open meeting would have a detrimental effect on the board's litigating position. A lawsuit is pending in this matter, filed by one Lunenburg selectman against three others. But boards tend to use the litigation exception broadly to close their doors whenever lawyers are involved. Given that the complainant here could have attended the meeting (but chose not to), and given that the reason for maintaining secrecy about one's litigation strategy is to keep it from your opponent, what possible justification did the selectmen have for closing this meeting? The only answer, of course, is to keep it out of the eyes of the public.

N.H. court eases access to police records

The New Hampshire Supreme Court has issued a ruling that eases access to police investigatory records under the state's Right-to-Know Law. In the Dec. 20 opinion, Murray v. New Hampshire Division of State Police, Special Investigation Unit, the court held that the state police force had failed to meet its burden of showing that release of the requested records would interfere with an ongoing investigation.

The records request came from a Massachusetts man, Frederick J. Murray, whose daughter disappeared three years ago after her car was involved in a one-car accident in New Hampshire. Murray requested numerous records pertaining to the state's investigation of her disappearance, all of which were denied, save for a single, minor exception.

The Supreme Court said that the Right-to-Know Law should be interpreted "with a view to providing the utmost information." The law does not explicitly address police investigative files, so the court said that access should be decided using the six-prong test applied under the federal Freedom of Information Act. The trial court relied on the first prong of this test -- that production of the records "could reasonably be expected to interfere with enforcement proceedings" -- but the Supreme Court found that the state had failed to show this. It therefore remanded the case to the trial court with instructions that the state present more specific information on how disclosure of each record would meet this test.

Foster's Online has this report on the decision.

Newspapers adopt Creative Commons licenses

The Town Online group of Massachusetts newspapers, purchased earlier this year by GateHouse Media, recently rolled out redesigned, more blog-like Web pages, and with them, Creative Commons licenses allowing sharing of content for non-commercial uses.

In an article posted at PressThink, Lisa Williams, editor of H20town.info, writes that this is the first newspaper chain or major newspaper to release content under Creative Commons, a more flexible alternative to traditional copyright. She quotes media critic and blogger Dan Kennedy:

"For newspapers to give up copyright is a remarkable step," says Dan Kennedy, who teaches journalism at Northeastern University and is a longtime watcher of the Boston media scene. "We all understand that it's okay to link to them, but this seems to say that it’s also okay to copy and paste entire articles. Is that what they want?"

Williams seems to think so. She writes:

"Sharing content, letting non-professionals submit content, and connecting with a global network of open-source tinkerers reveal a picture of a firm that’s open to the wide world of the web. That doesn’t sound like your average media company."

Our interview with JAG officer in Iraq

We have a particularly special edition this week of our legal-affairs podcast, Coast to Coast: We interview JAG Major John A. Engels, who speaks to us from his station in Iraq. Major Engels is serving in Iraq as command judge advocate of the 1st Brigade Combat Team, 34th Infantry Division. He supervises an office of five attorneys, 12 paralegals and an interpreter. He is also partner in the Minnesota law firm Petersen & Engels. Engels discusses his work as a lawyer in Iraq and the impact of his tour of duty on his practice back home.

• Download the MP3 file.
• Stream in Windows Media Player.
• Subscribe to the show's feed.

Lawyers' magazine features 'Coast to Coast'

In the December ABA Journal article, Top Ten in Tech, writer Jason Krause surveys "the trends, programs and gadgets that add punch to your practice." As an example of Web 2.0's impact on law practice, he features Coast to Coast, the legal-affairs podcast I co-host with California lawyer J. Craig Williams. Krause writes:

Robert Ambrogi from Rockport, Mass., and J. Craig Williams from Newport Beach, Calif., have become nationally known legal experts through their Web logs and Coast to Coast, a free podcast (an audio program the attorneys post on the Internet).

Krause's complete article is here.

Shield bill filed in Texas

A bill filed today in Texas would protect reporters against being forced to reveal confidential sources. The bill, HB 382, was filed by Rep. Aaron Pena of Edinburg. The text of the so-called Free Flow of Information Act is not yet available on the Texas legislature's Web site, but Associated Press reports that it would allow judges to require reporters to reveal privileged information only in certain circumstances. The Texas House Judiciary Committee has scheduled a hearing on the bill for tomorrow, AP says.

More on Patrick and shield law

As I noted here yesterday, Massachusetts Gov.-elect Deval Patrick, in a speech to the Massachusetts Newspaper Publishers Association (of which I serve as executive director), expressed his support for a shield law in the state. Today, the Boston Herald has an editorial on the news, Let the Honeymoon Begin:

Trying his best not to make real news, Gov.-elect Deval Patrick still managed to offer an encouraging word to the state’s newspaper publishers on the future of a shield law for journalists.
"I think a shield law is very important," Patrick told a meeting of the Massachusetts Newspaper Publishers’ Association. "I’m very concerned about the jailing of reporters ."

[Read more.]

Gov-elect Patrick supports shield bill

Massachusetts Gov.-elect Deval Patrick, speaking today at the annual luncheon of the Massachusetts Newspaper Publishers Association, expressed support for a law to protect reporters from disclosing their sources. But he said such a law would impose a concomitant responsibility on news organizations not to abuse the privilege. A bill to create a Massachusetts shield law is pending in the state legislature, but is unlikely to see action before the current session ends this month.

Patrick also expressed support for openness in government, while emphasizing his belief that some government business needs to take place behind closed doors.

Calif. Court Issues Broad Libel Protection

The California Supreme Court today issue a decision affirming sweeping protection against online defamation under the Communications Decency Act of 1996. In today's decision, Barrett v. Rosenthal, the court said that the common law distinction between "publishers" and "distributors" makes no difference under the CDA -- both have broad immunity against liability for defamatory materials published online. The court further held that the CDA protects providers and users of online computer services equally, without regard to whether the user is "active" or "passive."

"We acknowledge that recognizing broad immunity for defamatory republications on the Internet has some troubling consequences. Until Congress chooses to revise the settled law in this area, however, plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement."

The ruling overturns a decision of the California Court of Appeal, which held that the CDA did not protect a "distributor" who republished an allegedly defamatory statement with notice of its defamatory character.

The case pitted the operator of a Web site devoted to exposing health frauds, Dr. Stephen J. Barrett, against the operator of an Internet discussion group, Ilena Rosenthal. Rosenthal received a copy of an article that made various allegations concerning Barrett's character and competence. When she posted the article to two news groups, Barrett sued. The trial court ruled that her republication of the article was protected under the CDA, but the Court of Appeal reversed -- a move the Supreme Court characterized as "swimming against the jurisprudential tide."

The case had drawn friend-of-the-court briefs from the Electronic Frontier Foundation, the American Civil Liberties Union and a who's who of technology and media companies.

1st Amendment protects boxing, but not smoking

Could the protection lines of the First Amendment be any blurrier? Consider these two examples:

• In Albuquerque, N.M., a federal judge has ruled that five police officers and one firefighter have a First Amendment right to fight in a charity boxing tournament that will include excessive drinking and "scantily clad ring girls," Associated Press reports via the First Amendment Center. Although the fight may offend some city officials, the judge said, "the fundamental right of all citizens to form their own sensibilities is really the essence of the First Amendment."

• In Denver, Colo., a judge held that actors have no First Amendment right to smoke on stage despite a statewide smoking ban, the Daily Camera reports. "[P]laintiffs have failed to demonstrate that smoking in the theater constitutes expressive conduct," the judge said. The theater's artistic director maintained that smoking was "fundamental to the audience's understanding."

Clear now? You have a constitutional right to box and cavort on stage, just don't light up afterwards.

Judge orders town to open lawyer search

Finding that the town of Westborough, Mass., violated the open meeting law when it brought forth only one candidate from a field of 24 to be the new town attorney, a judge ordered the town to consider three finalists in an open meeting.

Reporter Sarah Menesale writes in the MetroWest Daily News that Worcester Superior Court Judge Jeffrey A. Locke ruled that selectman must consider the three finalist candidates in an open meeting and make public the minutes of a Sept. 7 meeting at which the candidates were discussed.

The open meeting law exempts meetings for preliminary screening of job applicants. In winnowing the pool from 24 candidates to one finalist, Judge Locke found, the town went to far. "Preliminary implies there will be a final selection process among those who have survived the earlier review," he concluded, according to Menesale's report.

Worcester District Attorney John Conte filed the lawsuit Sept. 29 after receiving a complaint filed by MetroWest Daily News Editor Richard Lodge.

Web site, blog, cover legal-affairs reporting

A program designed to prepare future journalists to cover legal affairs has launched a Web site and companion blog. The Carnegie Legal Reporting Program @ Newhouse is a program launched this year with a grant from the Carnegie Journalism Initiative. The program is based at Syracuse University's S.I. Newhouse School of Public Communications.

Companion to the new Web site is a blog, LawBeat, written by Mark Obbie, director of the program and former executive editor of The American Lawyer. The blog, Obbie says, "watches the journalists who watch the law. It is meant to start a conversation — here and in the classroom — about the quality of journalism focusing on the justice system, lawyers and the law."