By Dan Kennedy • The press, politics, technology, culture and other passions
OpenCourt, an innovative project set up to cover proceedings in Quincy District Court, has won another round, as Supreme Judicial Court Associate Justice Margot Botsford has ruled that it may expand its live-streaming to a second courtroom.
In so doing, Botsford rejected a move by Norfolk County District Attorney Michael Morrissey and public defenders to keep OpenCourt out.
Earlier item here; Boston Globe story here; the text of Botsford’s ruling here.
Despite a ruling by the state Supreme Judicial Court in its favor, OpenCourt continues to run into legal roadblocks in its quest to cover proceedings in Quincy District Court.
In the latest move, the office of Norfolk County District Attorney Michael Morrissey and the Committee for Public Counsel Services — that is, public defenders — are seeking to block OpenCourt from expanding its livestreaming operations to a second courtroom known as Jury Room A.
The request will be heard by a single justice of the SJC.
According to OpenCourt:
As of this writing, OpenCourt is the only news organization currently prohibited from covering trials in Courtroom A, also known as Jury Room A. Rule 1:19, the Massachusetts Camera in the Court statute, presumes that courtrooms are open to media….
Members of OpenCourt have for months openly planned to begin coverage of Jury Room A, and were set to begin livestreaming proceedings on Monday, July 16. Those plans are currently in a temporary state of limbo as we await single justice review.
Morrissey recently received a Boston Phoenix Muzzle Award for attempting to block OpenCourt, which is affiliated with WBUR Radio (90.9 FM), from posting archives of its livestreamed footage, a move that was shot down by the SJC.
Update, Aug. 15: SJC Associate Justice Margot Botsford ruled on Tuesday in favor of OpenCourt. The Boston Globe covers her decision here. The full text of her ruling is available here.
Please pardon the near-silence I’ve been maintaining here. I’m co-chairing a faculty search committee, and this week and next leave me with little time for anything other than that and teaching. (And picking arguments on Twitter.)
But I do want to call your attention to an important decision by the state’s Supreme Judicial Court. On Wednesday, the court ruled that OpenCourt, the WBUR-affiliated project that offers gavel-to-gavel coverage of proceedings in Quincy District Court, cannot be ordered by the government to redact any of its coverage.
Essentially, what happened was this. The lawyer for the defendant in a horrific child-rape case blurted out the name of the victim during public court proceedings. District Attorney Michael Morrissey sought to impose an order prohibiting OpenCourt from including the girl’s name in its video archives.
OpenCourt argued, rightly in my view, that as a matter of standard journalistic practice, no news organization present would use the girl’s name — but that it would violate the First Amendment to order such discretion. Underscoring OpenCourt’s argument is that several news organizations were present that day, yet Morrissey sought an order only against OpenCourt.
The SJC’s decision says in part:
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.
OpenCourt and the DA’s office have been at loggerheads from the beginning. The SJC’s ruling should provide some clarity to what had been a murky situation.
John Davidow, executive editor of new media at WBUR and the force behind OpenCourt, recently spoke about the project and the SJC case with my media-law students. Joe Spurr, OpenCourt’s director, was a student in my media-law class a few years ago.
What they’re doing is an important experiment in opening up what has traditionally been the most closed part of government.
A suspect’s lawyer blurts out the name of a 15-year-old girl whom prosecutors say was forced into prostitution. Several newspaper reporters hear the name. Even though they have the right to use it under the First Amendment, it’s understood that they won’t — it would be unethical journalistically, it would compromise the criminal case and it would traumatize the alleged victim.
Despite all that, the district attorney’s office goes to court to prevent a news organization’s video from being posted online, even though the folks who run that organization say they have no intention of uploading it until the identifying information has been removed.
In essence, that’s how OpenCourt characterizes a lawsuit brought by Norfolk District Attorney Michael Morrissey, which will be heard before Supreme Judicial Court Justice Margaret Botsford later today. The Boston Globe reports on the suit here; WBUR Radio (90.9 FM), with which OpenCourt is affiliated, reports on it here; and Open Court has its own take, with lots of background material, here.
Headed by WBUR’s executive editor for new media, John Davidow, OpenCourt received a $250,000 Knight News Challenge grant to livestream court proceedings and to make it easier for journalists, both professional and citizen, to provide coverage via Twitter and live-blogging. OpenCourt began livestreaming from Quincy District Court in May.
The issue of archiving those videos has proved to be contentious, with Morrissey’s office arguing that the archives — including the one involving the 15-year-old — could compromise “the privacy and safety of victims and witnesses.” Davidow responds that OpenCourt would be guided by the same ethical guidelines as any news organization, and that a legally imposed ban would be an unconstitutional abridgement of free speech. Davidow tells the Globe’s John Ellement:
This is really taking reporting that is done every day and then trying to take the editorial aspects away from journalists and put them in the hands of the state to decide what is published and what is not…. [O]nce we lawfully covered a story that was published, then it is up to the news organization to decide what to do with that material.
What Morrissey’s office is trying to do is to take long-established customs recognized by journalists and law-enforcement authorities alike and codify those customs into law, even though there is no reason to believe OpenCourt would act less responsibly than, say, the Quincy Patriot Ledger. It would set a dangerous precedent, and I hope the SJC does what is clearly the right thing.
OpenCourt, an ambitious project affiliated with WBUR Radio (90.9 FM) that’s designed to shine some sunlight on court proceedings, has been dealt a setback at the hands of Norfolk County District Attorney Michael Morrissey.
Last week OpenCourt began webcasting a livestream from Quincy District Court. But several days into the experiment, Morrissey asked that archives of the video stream be closed to the public. A motion (pdf) filed by his office claims that “the privacy and safety of victims and witnesses could be seriously compromised,” especially in cases involving gang violence. The motion cites the possibility that the jury pool could be tainted as well.
The OpenCourt blog responds:
The letter and the motions came as a great surprise to us, since we have for the past four months met with all stakeholders of the court, including the District Attorney, to ensure we implement this groundbreaking pilot project responsibly and respectfully.
While we will continue to record sessions, we have voluntarily decided to suspend posting the archives until sometime after May 18, 2011, as we try to work out a practical solution to the concerns raised by the District Attorney.
Headed by WBUR’s executive editor for new media, John Davidow, OpenCourt received a $250,000 Knight News Challenge grant to livestream court proceedings and to make it easier for journalists, both professional and citizen, to provide coverage via Twitter and live-blogging.
“It’s a pilot,” Davidow recently told Justin Ellis of the Nieman Journalism Lab. “It’s now a reality and off the white board. More and more issues will come forward.”
What makes this sticky is that OpenCourt has no First Amendment right to archive its video, or even to livestream. The project is entirely dependent on the goodwill of court officials. Yet the traditional closed-door mentality of our justice system helps foster suspicion and cynicism — exactly the negative attitudes that Davidow and company are trying to break down by making it easy for us to see exactly what takes place.
Let’s hope Morrissey thinks better of his knee-jerk reaction to openness and gives OpenCourt the room it needs to keep moving forward.
Note: OpenCourt’s struggle with Morrissey is also being tracked by the New England First Amendment Center at Northeastern University, to whose blog I occasionally contribute.