A new Internet live streaming project in Massachusetts broadcast its first criminal trial this month, but it’s still grappling with who can opt to stay off screen and why.
Boston NPR station WBUR developed OpenCourt with a $1 million Knight News Challenge grant from the Knight Foundation. Live streaming at Quincy District Court started in May 2011. At first, live streaming was limited to certain procedures, including arraignments, probation surrender hearings, substance abuse commitment hearings and summary process cases.
During the next year, OpenCourt survived two challenges before the Massachusetts Supreme Judicial Court that claimed live streaming makes victims, witnesses and defendants exposed and vulnerable.
On September 11, OpenCourt live streamed its first criminal trial in Quincy. That marked the first live streaming of a criminal case in Massachusetts. But on September 17, a Quincy judge granted a prosecutor’s motion to stop the live streaming because a witness would not testify if it continued.
That ruling illustrates the ongoing fight between parties who want different levels of public Internet access to court proceedings. The state’s high court has yet to release guidelines for OpenCourt, and a Quincy judge’s temporary rules are attracting their own criticism.
There’s nothing prurient about the project, said OpenCourt’s executive producer, John Davidow, who is also executive editor for new media at WBUR. “We’re not interested in a ‘People’s Court’ and putting people on display. It’s more about showing people how justice is done,” he said.
Norfolk County, Mass., District Attorney Michael Morrissey, who’s been a vocal critic of the project, said he’s opposed to live streaming without rules and regulations in place. “We’re just looking for it to adhere to standards [that journalists] have applied and used for so many years in exercising discretion and good taste in broadcasting and printing. That doesn’t appear to be happening, and that was the concern,” Morrissey said.
OpenCourt’s first major hurdle dates back to August 2011, when a challenge rose to the Massachusetts high court in the form of a case captioned Commonwealth v. Barnes. The case combined three petitions that challenged a Quincy District Court judge’s order about OpenCourt broadcasts and online posting in two different criminal cases.
In March 2012, the Supreme Judicial Court referred the case to Associate Justice Margot Botsford to issue an order denying the state’s two petitions and granting OpenCourt’s petition.
Botsford then authored the ruling, stating, “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.” In that ruling, Botsford asked the Supreme Judicial Court’s judiciary-media committee to develop guidelines for the OpenCourt pilot and submit them to the court for approval.
OpenCourt geared up to start live streaming full criminal trials in July, put hit the pause button again when the second challenge arose.
On July 3, Morrissey sued the justices of the Quincy District Court and asked the Massachusetts Superior Court for an injunction to stop the planned live streaming from Courtroom A at the Quincy District Court. A week later, Chief Counsel Anthony Benedetti of the Committee for Public Counsel Services filed another case.
The plaintiffs didn’t think Quincy District Court guidelines issued in May and revised on June 25 went far enough to protect witnesses, victims or defendants. One guideline allowed victims of sexual assault and domestic violence to decline being filmed and barred video streaming of sexual assault or domestic violence cases in which witnesses are minors. Another barred the filming of jurors. Others prohibited broadcast of cases involving the potential for retaliation or that showed undercover police officers or civilian informants.
Additional rules gave the judge control of the audio switch to keep bench conferences confidential and barred the archiving of video streaming until after a verdict.
But plaintiffs objected to the fact that the Supreme Judicial Court hadn’t weighed in on the proposed rules. Additionally, they claimed the proposals run afoul of an existing Supreme Judicial Court rule that allows judges to limit media coverage of cases.
Aside from concerns about the rules, the plaintiffs wanted a specific process for parties who wanted to stop or limit OpenCourt coverage of particular cases.
First Justice Mark Coven of the Quincy District Court said he has listened to the concerns and really tried to balance the public’s rights to access the court’s proceedings with the concerns of prosecutors and defense attorneys. “It’s always been my position that the more the public knows about what happens in the judicial system, the more confidence they’ll have that the judicial system is protecting their rights,” Coven said.
After a combined July 12 hearing on the two cases, Superior Court Justice Kenneth Fishman ruled on July 16 that review by a single justice of the Supreme Judicial Court is “the appropriate vehicle for the plaintiffs.” He also wrote that the parties agreed at the hearing to postpone OpenCourt’s expansion until that review happened.
The matter was again bounced to the Supreme Judicial Court. On August 14, Botsford ruled that “there is no reason to single OpenCourt out and impose on it a variety of restrictions that do not apply to other media organizations.”
She also ruled that that plaintiffs have failed to show that they will “suffer any substantial violation of their substantive rights” because of the Quincy District Court’s authorization to allow OpenCourt to cover the criminal trials under the interim guidelines.
Even if the rules are hammered out, Julieann Hernon, the attorney in charge of the Quincy District Court office for the Committee for Public Counsel Services, worries about the impact of the archived footage. “All of these things are not only archived, they’re there forever, and with a keystroke, someone could download them,” Hernon said.
Ultimately, OpenCourt is an important experiment in providing meaningful access to the courts in the 21st century, said Jeff Hermes, an OpenCourt advisory board member and director of the Digital Media Law Project at Harvard University’s Berkman Center for Internet and Society. “There has been an extraordinary effort to try to take the interests of all parties into consideration and to try to find ways to balance those interests,” Hermes said.
Indeed, part of the project is to discover where the obscurity of most court hearings makes sense and where the public should have more understanding about what’s going on the courts, Davidow said.
“We haven’t been surprised by the polarizing nature of this experience. [It's] created some incredibly good conversations along the way,” Davidow said.
Sheri Qualters is a reporter for The National Law Journal, a Legal affiliate basedin New York.
