that – if a courtroom is allowed to remain open to the public – only the rarest circumstances willvalidate a prohibition on publication of information revealed to the public in that courtroom. It isalso critical to note at the outset that the challenged Orders apply to only one member of themedia: OpenCourt. The Orders do not impose restrictions on the print media, radio andtelevision reporters, or, for that matter, any internet blogger who might have attended thehearings that are the subject of dispute.OpenCourt acknowledges the Commonwealth’s concern about protecting a minor’s privacy, and has voluntarily determined that it will not publish the minor victim’s name in this(or any other) case, and will redact any information it deems necessary to protect a minor’sidentity.
However, the question in this case does not involve whether to allow a courtroom toremain open during a legal proceeding. Here, the question is whether the trial court can prohibitone member of the media from publishing information obtained in an open hearing. TheseOrders (and the position advanced by the District Attorney) do not merely implicate limitationson newsgathering; they prevent a media outlet from communicating. As OpenCourt noted in itsJune 24 Petition for Relief (at 10), the barriers that must be overcome to exclude the public froma criminal proceeding are exceptionally high, but overcoming the long-standing FirstAmendment prohibition against prior restraints on the press is even higher. Contrast Globe Newspaper Co. v. Superior Court of Norfolk County, 457 U.S. 596, 608 (1982) (requiring case- by-case evaluation of closure of courtroom, rather than automatic closure for testimony of minor rape victim) with Oklahoma Publ’g Co. v. District Court, 430 U.S. 308, 311-12 (1977) (where proceeding involving minor was open to the public, court was unable to issue prior restraintagainst media to limit reports of proceeding).
See Ex. 1, Supplemental Affidavit of John Davidow, ¶ 21.
The Commonwealth takes other cases out of context as well. For instance, Demery v. Arpaio, 378 F.3d1020 (9th Cir. 2004), cert. denied, 545 U.S. 1139 (2005), quoted at length in the Commonwealth’s Emergency
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