In an important victory for freedom of speech, the Massachusetts Supreme Judicial Court issued a decision today in two related cases, Commonwealth v. Barnes and Commonwealth v. Diorio. The cases concerned WBUR‘s OpenCourt project, and the Court’s decision follows a long line of precedent in holding that courts generally may not restrain media organizations or others that attend public court proceedings from reporting on those proceedings. The Cyberlaw Clinic had the privilege to serve as co-counsel to OpenCourt in both cases, alongside Larry Elswit of Boston University’s Office of General Counsel. Jeff Hermes of the Digital Media Law Project (a frequent Clinic collaborator and a project, like the Clinic, based at Harvard’s Berkman Center for Internet & Society) serves on OpenCourt’s advisory board.
OpenCourt is based at WBUR and funded by the Knight Foundation. It offers a live audiovisual stream from the Quincy District Court in Quincy, MA at its website, along with an archive of recordings of past proceedings. The project seeks to use technology to significantly enhance access by the press and public to the judicial branch.
Shortly after OpenCourt went live last year, it became the subject of two separate emergency petitions to a Single Justice of the Massachusetts Supreme Judicial Court. Both petitions were assigned to Justice Botsford. In one case (Barnes), the Commonwealth argued that the district court should have the ability – at the close of a public proceeding – to order OpenCourt not to publish recordings that it lawfully made during that proceeding or to require specific redactions before the recordings are posted online in order to address concerns about the privacy of victims. In the other (Diorio), a criminal defendant represented by the Committee for Public Counsel Services argued that OpenCourt’s archiving of audiovisual recordings of his pre-trial proceedings impacted his right to receive a fair trial under the Sixth Amendment. Justice Botsford referred both cases to the full SJC; the cases were fully briefed last fall, and the Court heard oral argument in November.
In today’s decision, the Court ruled in favor of OpenCourt’s right to stream and archive court proceedings notwithstanding the objections of the Commonwealth in Barnes and the defendant in Diorio. The Court correctly held that orders like those at issue in the two cases would constitute unlawful “prior restraints,” which violate the First Amendment in all but the most narrow of circumstances:
We conclude that any order restricting OpenCourt’s ability to publish–by “streaming live” over the Internet, publicly archiving on the Web site or otherwise–existing audio and video recordings of court room proceedings represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution. Such an order may be upheld only if it is the least restrictive, reasonable measure necessary to protect a compelling governmental interest.
In reaching this conclusion, the Court rejected arguments that the unique nature of OpenCourt’s operation (including its use of cameras to permit an online stream and archive) suggested a prior restraint analysis was improper. Although there is no constitutional right to record or broadcast court proceedings, the SJC held that “if a court chooses in its discretion to allow recording, the person or entity making it has the same First Amendment freedom to disseminate the information it records as any other member of the print media or public, and the court is limited by the prior restraint doctrine in its ability to restrain the publication of the recording.” Indeed, the Court noted, even if a lower court were found to have abused its discretion by permitting a recording, “there can be no restraint on publication of the recording unless the court also determines that such a restraint is necessary to protect a compelling governmental interest and is the least restrictive reasonable method to do so.”
Considering arguments advanced by the Commonwealth and Diorio, the SJC held that neither had proffered sufficient evidence to support a finding that the interests in question – the interest in protecting the privacy of a minor victim in Barnes and the interest in a criminal defendant’s right to a fair trial in Diorio – were sufficiently compelling to justify a prior restraint. And, even if those interests were sufficiently compelling, the SJC ruled that a prior restraint would not be the “least restrictive means” of addressing the Commonwealth’s and Diorio’s concerns.
Although the Barnes and Diorio cases arise in the context of new technology, the decision issued today is very straightforward. That is because the question of whether a court may restrain one who attends a public court proceeding from disclosing information that he lawfully obtained during that proceeding (whether he records his impressions on paper or film or hard drive or simply preserves those impressions in his own head) is a very simple one: such restraints are strongly disfavored under a long line of First Amendment cases. By applying those cases to the facts before it, the SJC reached the right result.
The Clinic wishes to thank all of the students who contributed to the briefs in the Barnes and Diorio cases, including fall 2011 Harvard Law School Cyberlaw Clinic students Alan Ezekiel, Xiang Li, Matt McDonell, and Tom Spencer and summer 2011 Cyberlaw Clinic intern and New York University School of Law student Ava McAlpin.