By Brian Lynch
OpenCourt is a project run by WBUR that live streams court proceedings from the Quincy Massachusetts District Court over the web. The project states its mission is “to experiment with how digital technologies can foster the openness of the American courts with the idea that more transparent courts make for a stronger democracy.” In addition to the live stream, the videos are archived and available for viewing by registered users of OpenCourt.
Two parties from separate cases before the district court objected to the videos out of concern sensitive information would be available on the web. One party was abducted as a teen and forced into prostitution. She fears posting her identity on the internet will cause her to be victimized again. The other party is a criminal defendant who believes video from a pretrial hearing would prejudice him at trial. This week the Supreme Judicial Court heard arguments asking the court to impose limitations on the OpenCourt project.
The SJC is being asked to decide if the proposed restrictions violate OpenCourt’s First Amendment rights by preventing it from publishing information it has lawfully gathered, in deference to the victim’s privacy rights and the defendant’s due process rights. The Boston Globe reported Justice Ralph Gants remarked; “[If] we are going to be ordering BU not to publish. … How is that not prior restraint?” Prior restraint is the government’s restriction of speech prior to publication and is presumed unconstitutional.
The Norfolk District Attorney’s Office and attorneys from the Committee for Public Counsel Service represent the parties that are requesting the videos not be posted. They argue inter alia that the project should not be viewed as presenting a prior restraint conflict because the audio supplied for the webcast comes from the court’s in house audio feed. The audio feed should be viewed like a court document and remain in the control of the court.
Does that argument hold water? The SJC isn’t expected to decide for weeks, but on its face it doesn’t appear an audio feed is a record. An audio feed is fleeting, not a documentation of an occurrence. The actual recording is done by OpenCourt and not the district court as in the case of a stenographer’s transcript. Additionally the argument leaves open the inference that if OpenCourt used its own microphones it would not be subject to court restrictions. OpenCourt likely has the technology to do this, but probably chose to use the court’s audio feed for its clarity and to avoid an additional set of unnecessary microphones at each speaking position.
Since Chandler v. Florida was decided 1981, states have the freedom to allow recording devices in court rooms but are not required to do so. Courts are also given the discretion to impose reasonable restrictions. In Massachusetts, Supreme Judicial Court Rule 1:19 allows for the broadcasting, televising, electronic recording, or taking photographs of proceedings open to the public in the courtroom by the news media for news gathering purposes and dissemination of information to the public, subject to limitations found here.