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7-8-11 Memo in Response to Emergency Petition

7-8-11 Memo in Response to Emergency Petition

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Published by: WBUR on Jul 11, 2011
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12/25/2012

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COMMONWEALTH OF MASSACHUSETTSSUPREME JUDICIAL COURT FOR THE COUNTY OF SUFFOLK 
COMMONWEALTH
V
. NORMAN BARNES No. SJ-2011-0265MEMORANDUM ON BEHALF OFTRUSTEES OF BOSTON UNIVERSITY, D/B/A WBUR-FM AND “OPENCOURT”IN RESPONSE TO“COMMONWEALTH’S EMERGENCY PETITION UNDER G.L. c. 211, § 3,TO REVERSE THE DISTRICT COURT ORDER ALLOWINGPUBLIC POSTING ON THE INTERNET OF THE VIDEO/AUDIO RECORDINGOF DANGEROUSNESS HEARING”On June 24, 2011, Petitioner Trustees of Boston University, d/b/a WBUR-FM andOpenCourt (hereafter, “OpenCourt”) asked a single Justice of this Court for emergency relief from two Orders of the Quincy District Court that restrict its right to communicate informationabout a criminal case pending in that courtroom. The case, Commonwealth v. Barnes, chargesthe defendant with kidnapping a minor and forcing her into prostitution. OpenCourt submits thismemorandum for the limited purpose of responding to the Norfolk County District Attorney’semergency petition in this matter, filed on June 23, 2011, challenging the same Orders of theDistrict Court. Wherever possible, this memorandum will avoid duplication of arguments previously presented to the Court in OpenCourt’s Petition for Relief under G.L. c. 211, § 3, filedon June 24, 2011.The Commonwealth Has Misconstrued the Law Governing the Issues in this Case.It is critical to note at the outset that the challenged Orders constitute prior restraints onspeech, and case law cited in OpenCourt’s original Petition (at p. 5) establishes beyond question
 
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).
 
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See Ex. 1, Supplemental Affidavit of John Davidow, ¶ 21.
2
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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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OpenCourt does not minimize the challenges posed by the development of new andalternative media and rapidly-changing forms of communication. But the fact that OpenCourt isneither print, television, nor radio, but is, instead, entirely internet-based, does not alter theconstitutional analysis. Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997)(“[o]ur cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to [the Internet].”).The Commonwealth’s suggestion that the medium somehow changes the calculus, citingHollingsworth v. Perry, 130 S. Ct. 705 (2010), is incorrect. As the Commonwealth notes (at 9),the Supreme Court has acknowledged the “qualitative differences” between a public appearanceand one that is broadcast over the internet. But the Court rejected that distinction as a basis for deciding the issue before it (whether to permit audio and visual broadcasting of a bench trialrelating to a California ballot proposition pertaining to gay marriage). Rather, the Courtexplicitly avoided “express[ing] any views on the propriety of broadcasting court proceedingsgenerally,” but rather, stated that “our review is confined to a narrow legal issue: whether theDistrict Court’s amendment of its own local rules to broadcast this trial complied with federallaw.” Id. at 709.Moreover, contrary to the Commonwealth’s suggestion, OpenCourt did not introducenew technology in the courtroom without public input. As the Supplemental Affidavit of John
Petition at 15, involves pre-trial detainees whose due process rights were violated by publication of a videostream that displayed them in holding cells and intake areas generally closed to the public. Id. at 1029. Here,of course, OpenCourt is streaming live video and audio from a quintessentially open area—the courtroom.Similarly, Commonwealth v. Perkins, 450 Mass. 834 (2008) and Commonwealth v. Downey, 65 Mass. App.Ct. 547 (2006) (cited on p. 17) involved counsel who wore hidden microphones during trial to create an audiorecording for a documentary. The rulings in both cases are limited to the impropriety of covert recordings, andwere decided on conflict of interest and attorney-client privilege grounds. The issues in those cases arecompletely unlike the concerns generated by the challenged orders of the Quincy District Court. TheCommonwealth’s reference to Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633 (2009)(Commonwealth’s Emergency Petition at 14) is inapposite because that case addresses Fourth Amendment, notFirst Amendment concerns. The case had absolutely nothing to do with the media, press, or speech: rather, itconcerned the strip search of an adolescent while searching for contraband prescription medication.
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