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Mass. court OKs live, unedited court proceedings

By Denise Lavoie
AP Legal Affairs Writer / March 14, 2012
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BOSTON—The highest court in Massachusetts on Wednesday rejected challenges to a pilot project that continuously streams live, unedited court proceedings from one of the busiest courtrooms in the state.

The "OpenCourt" project began in May with cameras recording and streaming murder arraignments, traffic and drug cases live over the Internet from Quincy District Court.

The project, run by WBUR-FM, Boston's National Public Radio station, was designed to promote greater access to the courts through digital technology. It was praised by journalists, but raised concerns from some prosecutors and defense attorneys.

Prosecutors challenged the presiding judge's order allowing OpenCourt to post a recording of a criminal dangerousness hearing for Norman Barnes, a kidnapping suspect, to a public online archive. They argued that the judge abused his discretion and failed to protect the privacy of the alleged minor victim, a 15-year-old girl who was allegedly kidnapped and enticed into prostitution.

In a separate challenge, a defendant appealed an order allowing the broadcasting and online archiving of his arraignment and a motion hearing in his case. Charles Diorio contends that the judge prejudiced his right to a fair trial by allowing the hearings to be broadcast and by not ordering the removal of the recordings from the online archives.

The Supreme Judicial Court found that any order restricting OpenCourt's ability to stream courtroom proceedings live or post recordings to an online archive represents a form of prior restraint on the constitutional freedoms of the press and speech.

"Such an order may be upheld only if it is the least restrictive, reasonable measure necessary to protect a compelling governmental interest, "Justice Margot Botsford wrote for the court in the unanimous, 5-0 ruling.

The SJC overturned the order of the presiding judge requiring the redaction of the minor's name from the archives, but said it expects OpenCourt to voluntarily not publish the name.

The judge's order was unconstitutional because the state could not demonstrate that publishing the girl's name would harm her privacy or psychological well-being, "or that a prior restraint was the least restrictive reasonable method to protect those interests," Botsford wrote.

In the Diorio case, the court found that Diorio had "not met the heavy burden of justifying an order of prior restraint" for his arraignment or motion hearing.

The court also, however, expressed some concern, asking that the SJC's judiciary-media committee submit a set of guidelines for the operation of the OpenCourt project.

Lawrence Elswit, who represents WBUR, said there is a two-day delay from when the court proceedings are streamed live and the recordings are put into an online archive. He said that in the Barnes case, the girl's name was inadvertently blurted out by a witness during the hearing, but WBUR voluntarily removed the girl's name and other identifying information before it appeared in the archive.

"What happened here is WBUR exercised its discretion to restrict certain information because it's inappropriate, the minor victim's name does not belong in a responsible media outlet," Elswit said.

Prosecutors did not immediately return a call seeking comment. Diorio's attorney also did not return a call seeking comment.

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