SJC Affirms Libel Verdict Against Boston Herald

The Massachusetts Supreme Judicial Court today affirmed the $2.09 million libel verdict against the Boston Herald and reporter David Wedge in a case brought by Superior Court Judge Ernest B. Murphy. In a decision written by Justice John Greaney, the court said: "We conclude that the verdict, as modified by the trial judge, holding the defendants liable for the calumnies published, is sound in fact and in law, and we now affirm the judgment entered on the jury's verdict."

• Full text of decision: Murphy v. Boston Herald.

At issue were a series of articles attacking Murphy as soft on crime. The first article ran under the headline "Murphy's law," with the subhead "Lenient judge frees dangerous criminals." It included the allegation that Murphy had said of a teenage rape victim, "She can't go through life as a victim. She's 14. She got raped. Tell her to get over it."

The SJC found "that there is overwhelming evidence in the record from which to conclude, as the jury did, that the statements were defamatory and false." The court came down particularly hard on Wedge, finding that his testimony at trial was not believable and was impeached by contradictions in his earlier deposition testimony. "It is fair to say that, by the end of Wedge's testimony, his credibility on any material factual point at issue was in tatters," Greaney wrote.

As for the statement about the rape victim, Greaney found that overwhelming evidence indicated that Murphy's actual statements showed compassion and concern, not callousness. "The actual remarks made by the plaintiff in the lobby conference in the rape case … are polar opposites to what Wedge reported and demonstrate that the plaintiff had acted with compassion and prudent regard to assist the victim in restoring her life."

Greaney found that Wedge "deliberately attempted to mislead the jury" and acted with "actual malice" in his reporting of the stories. "There is an abundance of evidence that, taken cumulatively, provides clear and convincing proof that the defendants either knew that the published statements found by the jury to be libelous were untrue, or that they published them in reckless disregard of their probable falsity."

"Despite obvious reasons to doubt the quotation's accuracy, however, and although Wedge knew that there were others -- not connected to the district attorney's office -- who had been present at the robbery case lobby conference at which the statements purportedly were made, Wedge failed to interview anyone other than Crowley," Greaney wrote.

"When substantial doubts have been raised as to the veracity of a reporter's information, the purposeful failure to investigate known witnesses may be proof of actual malice. … The evidence, clearly and convincingly, supports the inference that Wedge included the 'tell her' quotation, which not one percipient witness had confirmed, to convey the impression (false) of callousness. The evidence equally clearly and convincingly supports the determination that Wedge purposely did not seek to interview any of the percipient witnesses who would have contradicted the alleged facts in his article."

Greaney said that "most damaging" to Wedge were the circumstances in which he discarded his notes. Even though Wedge testified that he routinely discarded his notes within days, Greaney found it "highly improbable" that would discard them here, having already been put on notice by a lawyer that Murphy claimed he was misquoted.

"The jury were entitled to draw the negative inference that Wedge discarded his notebook in a deliberate effort to conceal what he knew were inaccuracies in his reporting. This inference, in turn, provides a strong basis for a finding of actual malice."

Greaney concludes: "The record contains sufficient evidence to permit the conclusion that the defendants published the quotation, and other defamatory statements concerning the plaintiff, with knowledge of their falsity or with serious doubts as to their truth."

NH Court Says Repeat Criminal Not 'Libel Proof'

The New Hampshire Supreme Court has reversed a lower court ruling that a repeat criminal is "libel proof" -- meaning that his reputation was already so bad that false statements in a newspaper could not make it worse. According to an Associated Press report published by the Concord Monitor, state prison inmate Terry Thomas will now be able to proceed with his libel lawsuit against The Telegraph of Nashua and police officers who were quoted in the article. The AP report says:

"The Telegraph had argued Thomas was libel-proof for two reasons: He already had such a lengthy criminal record that even false statements could not damage his reputation further, and any disputed statements in the article would not harm his reputation beyond the true statements in the same article."

But the Supreme Court said the first ground would apply only if the plaintiff was already notorious because of widespread publicity about his crimes, which was not the case with Thomas. "Criminal convictions alone are not enough to justify application of the doctrine," the court said.

The court declined to decide the second question, the AP reports, saying that Thomas had challenged more than half the statements in the article and that, while evidence supported some of them as true, the lower court had not decided whether others were false, statements of opinion or protected by the fair-reporting privilege.

The full text of the opinion is here.

To Russia to Discuss Media Law

I am thrilled to announce that I will be visiting Russia May 12-19 as part of a five-person delegation to discuss the relationship between the news media and the courts. We will be visiting the Siberian city of Tomsk, some 2,200 miles east of Moscow, where we will meet with Russian judges, lawyers, journalists and law students. Through a series of meetings and presentations, we will share perspectives on libel and defamation law, media access to judges and court proceedings, media coverage of court proceedings and other issues of common interest.

The trip is under the auspices of the Russian American Rule of Law Consortium, an organization that promotes partnerships between legal communities in the United States and Russia. Massachusetts has had such a partnership with Tomsk since 2001.

Details on the trip I am part of can be found here.

Podcast: Colleges and Legal Liability

In the wake of the Virginia Tech shootings, our legal-affairs podcast Lawyer2Lawyer examines the legal liability of higher-education institutions for students who are homicidal or suicidal. Joining my cohost J. Craig Williams and me for this discussion are Anthony J. Sebok, professor at Brooklyn Law School and author of a recent article exploring Virginia Tech's liability, and Robert B. Smith, partner with the Boston firm Nelson, Kinder, Mosseau & Saturley and author of a recent opinion piece in The Chronicle of Higher Education about student suicide and colleges' liability.

Listen to or download the full program at this page.

Shield law scorecard: One win, one loss

While I away last week, there was good and bad news on the shield law front.

In Washington, the state legislature approved a shield law and sent it on to the governor, who was expected to sign it. The Seatlle Post-Intelligencer has details.

Meanwhile, a Texas shield bill died after failing to be brought for a vote. More details from AP via the First Amendment Center.

Here in Massachusetts, a shield bill remains pending in the state legislature.

Podcast: Imus and the Law

It's all Imus all the time this week in the media and in the blogosphere. But what does the law have to say about all this? Did Imus commit libel? What about the First Amendment? Where's the FCC in all this? Did he have an employment contract? We get the answers to those questions and more this week on our legal-affairs podcast Lawyer2Lawyer, with two top media lawyers and a civil rights lawyer to help us out. Our guests for this program are:

• Eileen O'Connor, counsel at Orrick, Herrington & Sutcliffe in Washington, D.C., and a 24-year veteran broadcast journalist.
• Norman A. Pattis, criminal defense and civil rights lawyer and co-author of the blog Crime & Federalism.
• Sandra S. Baron, lawyer and executive director of the Media Law Resource Center in New York City.
  

Download or listen to the program at this page.

Podcast: The Internet Bar

The world is shrinking, thanks to the Internet, and that includes the legal world. More and more, the practice of law is global. One legal organization that seeks to harness this global network of lawyers in furtherance of promoting online justice is InternetBar.org and its educational arm, the InternetBar.org Institute. This week on the legal-affairs podcast Lawyer2Lawyer, we discuss the work of InternetBar.org with three of its key members:

• Jeffrey M. Aresty, president of InternetBar.org and a Boston lawyer whose various achievements include the co-founding of ABA TechShow in 1987.
• Amelia Rea Maguire, former Florida secretary of commerce, partner in the Coral Gables, Fla., law firm of Amelia Rea Maguire P.A.
• Kenneth J. Vacovec, founding partner of the firm Vacovec, Mayotte & Singer in Newton, Mass., and former president of the Massachusetts Bar Association.
  

Download or listen to the program from this page.

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.)