OpenCourt Has Its Day In The State's Highest Court

The case before the Supreme Judicial Court hinges on whether or not OpenCourt can archive video of court proceedings. It's prompted by two cases — one about a 15-year-old girl who was allegedly kidnapped and forced into prostitution. Another case is about a man charged with armed assault and other crimes.

Both hearings were live streamed by OpenCourt, a pilot project operated by WBUR. OpenCourt live streams all proceedings from the Quincy District Court. Lawyers can ask the judge to turn off the feed, but the judge has the final say.

From the perspective of OpenCourt, this is a First Amendment case based on the media's right to publish information gathered in court.

In case of the 15-year-old girl, the judge denied the attorney's request. Norfolk Assistant District Attorney Varska Kukafka said OpenCourt should not be allowed to put the archived hearing on the website.

"Posting the hearing on the Internet, that includes all of her identity, all of her confidential information, her life circumstances, her private information and her lurid details of what she went through is a further assault. That should not happen," Kukafka said.

From the perspective of OpenCourt, this is a First Amendment case based on the media's right to publish information gathered in court.

"We voluntarily agreed not to publish the identity of the victim when her name was inadvertently disclosed, what we call a blurt," said Larry Elswit, who represents OpenCourt. He added, "the irony is that much more of her identifying information is already out there on the Internet by virtue of the traditional news media."

The SJC won’t decide the case for several months, but the judges' questions Tuesday focused on how the video should be treated, as a court document, like a deposition, or as information gathered by the media.

"It’s not a court record?" Justice Ralph Gants asked Kukafka.

"That’s the question," said Kukafka, "what is it and that’s what this court should decide."

Judge Gants responded, "So you are saying it is a court record, even though it’s physically in the possession of 'BUR?"

"Yes," she replied.

"And have we ever done that?" asked Gants.

"Well, there has never been a project like this," responded Kukafka.

A lawyer connected to the robbery case argued that this is a unique project that should be examined by the SJC. Defense attorney John Fennel said because of the arrangement OpenCourt has with Quincy to use the court’s microphones and put a camera in the witness box, the court has more control over the product than with a typical media story.

"OpenCourt can only produce the product it does because of the encouragement given by Quincy District Court, and it would not be prior restraint to stop OpenCourt from publishing these broadcasts and recordings that they’ve created," Fennel said.

After Fennel's comments, the justices questioned Elswit about whether the live streaming project is in keeping with court rules that say a judge should not make an exclusive arrangement with news media. Elswit said beyond using the court’s microphones, it’s not a private agreement.

"We don’t have any more access to any information than any other outlet. We don't have private communication with Judge Coven about cases. When the court is not in session the camera is off, when a magistrate is running the court, we are not there," Elswit said.

OpenCourt said that as a news organization it doesn't want to give editorial control to the court, and the outcome of this case could set an important precedent.

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