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COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT FOR THE COUNTY OF SUFFOLK COMMONWEALTH

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NORMAN BARNES No. SJ-2011-0265 MEMORANDUM ON BEHALF OF TRUSTEES OF BOSTON UNIVERSITY, D/B/A WBUR-FM AND OPENCOURT IN RESPONSE TO COMMONWEALTHS EMERGENCY PETITION UNDER G.L. c. 211, 3, TO REVERSE THE DISTRICT COURT ORDER ALLOWING PUBLIC POSTING ON THE INTERNET OF THE VIDEO/AUDIO RECORDING OF DANGEROUSNESS HEARING On June 24, 2011, Petitioner Trustees of Boston University, d/b/a WBUR-FM and OpenCourt (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 information about a criminal case pending in that courtroom. The case, Commonwealth v. Barnes, charges the defendant with kidnapping a minor and forcing her into prostitution. OpenCourt submits this memorandum for the limited purpose of responding to the Norfolk County District Attorneys emergency petition in this matter, filed on June 23, 2011, challenging the same Orders of the District Court. Wherever possible, this memorandum will avoid duplication of arguments previously presented to the Court in OpenCourts Petition for Relief under G.L. c. 211, 3, filed on 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 on speech, and case law cited in OpenCourts original Petition (at p. 5) establishes beyond question

that if a courtroom is allowed to remain open to the public only the rarest circumstances will validate a prohibition on publication of information revealed to the public in that courtroom. It is also critical to note at the outset that the challenged Orders apply to only one member of the media: OpenCourt. The Orders do not impose restrictions on the print media, radio and television reporters, or, for that matter, any internet blogger who might have attended the hearings that are the subject of dispute. OpenCourt acknowledges the Commonwealths concern about protecting a minors privacy, and has voluntarily determined that it will not publish the minor victims name in this (or any other) case, and will redact any information it deems necessary to protect a minors identity.1/ However, the question in this case does not involve whether to allow a courtroom to remain open during a legal proceeding. Here, the question is whether the trial court can prohibit one member of the media from publishing information obtained in an open hearing. These Orders (and the position advanced by the District Attorney) do not merely implicate limitations on newsgathering; they prevent a media outlet from communicating. As OpenCourt noted in its June 24 Petition for Relief (at 10), the barriers that must be overcome to exclude the public from a criminal proceeding are exceptionally high, but overcoming the long-standing First Amendment 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 caseby-case evaluation of closure of courtroom, rather than automatic closure for testimony of minor rape victim) with Oklahoma Publg 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 restraint against media to limit reports of proceeding).2/
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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.3d 1020 (9th Cir. 2004), cert. denied, 545 U.S. 1139 (2005), quoted at length in the Commonwealths Emergency
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OpenCourt does not minimize the challenges posed by the development of new and alternative media and rapidly-changing forms of communication. But the fact that OpenCourt is neither print, television, nor radio, but is, instead, entirely internet-based, does not alter the constitutional 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 Commonwealths suggestion that the medium somehow changes the calculus, citing Hollingsworth 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 appearance and 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 trial relating to a California ballot proposition pertaining to gay marriage). Rather, the Court explicitly avoided express[ing] any views on the propriety of broadcasting court proceedings generally, but rather, stated that our review is confined to a narrow legal issue: whether the District Courts amendment of its own local rules to broadcast this trial complied with federal law. Id. at 709. Moreover, contrary to the Commonwealths suggestion, OpenCourt did not introduce new 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 video stream 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 areathe 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 audio recording for a documentary. The rulings in both cases are limited to the impropriety of covert recordings, and were decided on conflict of interest and attorney-client privilege grounds. The issues in those cases are completely unlike the concerns generated by the challenged orders of the Quincy District Court. The Commonwealths reference to Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633 (2009) (Commonwealths Emergency Petition at 14) is inapposite because that case addresses Fourth Amendment, not First Amendment concerns. The case had absolutely nothing to do with the media, press, or speech: rather, it concerned the strip search of an adolescent while searching for contraband prescription medication.

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Davidow, Executive Producer of OpenCourt makes clear, WBUR went to great lengths to engage a wide array of community interests, including, of course, the Norfolk County District Attorney, who personally participated in the conversation. Exhibit 1, 6-12. The Commonwealths reliance on Florida Star v. B.J.F., 491 U.S. 524 (1989), is misplaced. In that case, which involved a statute used to punish speech after the fact (rather than a prior order prohibiting it), the Supreme Court declined to hold broadly that truthful publication may never be punished consistent with the First Amendment. Id. at 532. However, the Court underscored the importance of relying on limited principles that sweep no more broadly than the appropriate context of the instant case. Id. at 533. The Court did not hold that statutes punishing speech are constitutional: rather, it held that Floridas rape shield law (like the Massachusetts rape shield law cited by the Commonwealth) could not constitutionally be applied to punish the media for publishing true information inadvertently revealed by a police report. Id. at 541.3/ The Florida Star Court noted that where the government itself provides information to the media, it is most appropriate to assume that the government had, but failed to utilize, far more limited means of guarding against dissemination than the extreme step of punishing truthful speech. Id. at 538. Here, the Quincy District Court agreed to open the courtroom to the media during the dangerousness hearing at issue. To the extent that Florida Star addressed the question of pre-publication bans on speech, the Supreme Court noted that it had never found that privacy concerns are sufficient to surpass the strong presumption in favor of the presss right to
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The Commonwealths suggestion that privacy rights trump constitutional principles, referencing a range of Massachusetts statutes (Commonwealths Emergency Petition at 18), is incorrect. Statutes such as G.L. c. 265, 24C, are trumped by the First Amendment when used against media organizations that publish accurate information lawfully obtained from the courts. Florida Star, 491 U.S. at 526 (holding a similar civil statute to be unconstitutional as applied to the press); Smith v. Daily Mail Publg Co., 443 U.S. 97, 102 (1979) (same).

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publish, id. at 530, 537, particularly where narrower means were available to protect the information. Here, OpenCourt sought to determine the concerns of individuals and interest groups who might be affected by the live streaming and archiving of courtroom proceedings and, working in conjunction with its Advisory Board, voluntarily crafted a set of narrower means. Davidow Supp. Aff., 1321. OpenCourts own policy of restricting the disclosure of confidential information makes a prior restraint not only unconstitutional but completely unnecessary. Although the Commonwealth raises emotionally compelling concerns about the release of information that might identify a minor victim, its speculation is insufficient to support a prior restraint. In Nebraska Press Assn v. Stuart, 427 U.S. 539 (1976), the Supreme Court reasoned that a prior restraint was not appropriate because there were no express findings that harm would occur upon publication. Moreover, there was no demonstrative evidence that other measures would be unable to prevent those harms. Id. at 563-64. Here, as Mr. Davidows affidavit sets forth, OpenCourt has taken other measures to prevent exactly the harm that concerns the Commonwealth. The Commonwealths interest in protecting the privacy of the minor victim in this case is, at best, inconsistent: the District Attorneys motions challenging OpenCourts right to create video archives in virtually every criminal case before the Quincy District Court targeted only the OpenCourt project. Not one of the Commonwealths motions sought to close the courtroom or asked Judge Coven to issue a broad order prohibiting all media outlets from publishing identifying information. Indeed, other reporters were allowed in the courtroom and reported the information they gathered. See Brian Ballou, Kidnap Suspect Denied Bail, BOSTON GLOBE (May 28, 2011) http://articles.boston.com/2011-05-28/news/29601189_1_kidnapping-victim-

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prostitution (naming the street where the victim was kidnapped, the price the defendant charged customers, the color of the lingerie given to her, and the names of some of the hotels to which she was taken); ORyan Johnson, Judge Declares Suspect a Danger, BOSTON HERALD (May 28, 2011) http://news.bostonherald.com/news/regional/view/2011_0528judge_declares_suspect_a_d anger_da_succeeds_in_keeping_alleged_kidnapper_locked_up/ (mentioning the street on which the defendant allegedly met the victim, the towns she was taken to, and how her aunt and uncle found her); No Bail for Dorchester Man Charged with Forcing Teen into Prostitution, DORCHESTER REPORTER (May 27, 2011) http://www.dotnews.com/2011/no-bail-dorchester-mancharged-forcing-teen-prostitution (naming the street the teen was picked up on, the towns the she was taken to and the high school she attends). Under these circumstances, it is likely that the news that the Commonwealth claims it seeks to protectprivate information relating to the victimwas made available to her schoolmates and peers by print media outlets that are far more accessible than the OpenCourt project. In Florida Star, the Supreme Court noted that punishing the press for its dissemination of information which is already publicly available is relatively unlikely to advance the interests in the service of which the State seeks to act. 491 U.S. at 535. Yet the challenged Orders, with the support of the District Attorney, do exactly what the Supreme Court forbids. Finally, the Commonwealths reliance on People v. Bryant, 94 P.3d 624 (Colo. 2004) the only case that it cites actually involving a prior restraintis completely misplaced. That case, involving a highly visible professional athlete, concerned in camera hearing transcripts that had been inadvertently released to the press notwithstanding procedures put in place to prevent all media from attending the hearings. Id. at 627, 632-33. The transcripts, which had been marked in large lettering IN CAMERA PROCEEDINGS for use only by the court and parties,

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were mistakenly e-mailed to members of the media. The trial judge, upon realizing the mistake, immediately issued an order prohibiting the media from publishing the information. Id. at 62627. The Colorado Supreme Court affirmed the order as applied to the in camera transcripts on narrow grounds. Id. at 638.4/ In People v. Bryant, the press sought to publish information that had been designated as confidential by the court. In contrast, the proceedings in Commonwealth v. Barnes were open to the public, including the media. Neither the Commonwealth nor the defendants attorney made any effort to close the proceedings to the public, or the media. CONCLUSION The relief sought by the Commonwealth attempts to shift the burden of protecting the victim from the government to the media. Where, as here, there are other means of preventing the disclosure of sensitive informationand where, as here, OpenCourt has taken the initiative to work with all of the various interest groups to establish a well-considered mechanism for protecting that informationthose protections should be used, rather than making journalists responsible for the risk that others may make mistakes. OpenCourts Petition for Relief establishes the legal framework for considering the issues before this Court. For the reasons set forth in its Petition for Relief, and in this supplemental memorandum, Petitioner Trustees of Boston University, on behalf of WBUR and its OpenCourt project, respectfully requests that this Court modify the challenged Orders of the Quincy District Court to allow OpenCourt to record and archive the proceedings in the courtroom without the prerequisite of judicially-imposed
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The issue was later resolved when the trial court vacated its order and released all but a few lines of the transcripts. But there remains an interesting question of whether the Colorado Supreme Courts decision, which implicated significant constitutional questions, would have been upheld if it had reached the United States Supreme Court. As noted earlier, the press cannot be banned from publishing information it lawfully acquired (even by mistake). Florida Star, 491 U.S. at 536 (emphasizing that the press lawfully obtained truthful information about a matter of public significance (citation omitted)).

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redaction. Request for Oral Argument OpenCourt respectfully requests that this matter be scheduled for oral argument at the earliest possible opportunity. Respectfully submitted, Trustees of Boston University, d/b/a WBUR-FM, and OpenCourt, By its attorneys,

__________________________________________ Lawrence S. Elswit (BBO #153900) Boston University Office of the General Counsel 125 Bay State Road Boston, Massachusetts 02215 (617) 353-2326 Christopher T. Bavitz (BBO # 672200) Assistant Director, Cyberlaw Clinic Berkman Center for Internet & Society Harvard Law School 23 Everett Street, 2nd Floor Cambridge, Massachusetts 02138 (617) 495-7547

Date: July 8, 2011

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