Lawyers Journal

Cameras in the Courtroom

Does your daily online routine include updating your Facebook status, scanning Twitter for recent news, or posting to your blog? What about watching live streaming video from Quincy District Court?

Using video cameras to film court sessions is nothing new. They are extensively documented high-profile murder trials like those of Casey Anthony and O.J. Simpson, and highlights of local proceedings frequently appear on the evening news.

But with public and private initiatives underway, and the Supreme Judicial Court's March 14, 2012 ruling giving broad access to filming and streaming court proceedings, cameras in Massachusetts courtrooms has become a timely issue. Some see it as an opportunity, but others say it raises troubling privacy concerns.

The SJC's ruling in the three cases, Commonwealth v. Norman Barnes, Trustees of Boston University v. Commonwealth and Charles Diorio v. First Justice of the Quincy Division of the District Court Department, stemmed from a new project that films and streams court proceedings.

In its decision, the SJC noted:

Although the public has the right to be physically present in a court room, there is no constitutional right to bring cameras into or to make audio or video recordings of court room proceedings. Nixon v. Warner Communications, Inc., 435 U.S. 589, 610 (1978). However, if a court chooses in its discretion to allow recording, the person or entity making it has the same First Amendment freedom to disseminate the information it records as any other member of the print media or public, and the court is limited by the prior restraint doctrine in its ability to restrain the publication of the recording.

Live streaming video

At the forefront of the issue -- and the reason for the SJC's ruling -- has been OpenCourt, a pilot project run by Boston's National Public Radio news station WBUR, which wants to educate the public about what really goes on in courtrooms by live streaming video footage of regular court proceedings at Quincy District Court. The live video footage, along with its archives, can be found on OpenCourt's website, http://opencourt.us.

"The ultimate goal, at its most basic, is to reconnect the public with the courts," said John Davidow, OpenCourt's executive producer and WBUR.org's executive editor. "The founders imagined that justice would be done in public. Very few people understand or have knowledge of what goes on in the courtrooms."

OpenCourt's live stream averages about 100 concurrent viewers at any given time, and viewers can also see how many people are also watching the live stream. Even though this pilot project is still in its infancy, it's hoped that support for it, and its popularity, will grow. OpenCourt is currently exploring how to create a revenue stream for its cameras in the courtroom project, including partnerships with for-profit companies. Eventually, it would like to see its model for cameras in the courtroom nationwide.

While courts are open to the public, it's difficult for people to watch a court proceeding, especially since sessions are held when most are working, and there isn't a practical way for the public to get information about what goes on during proceedings.

"They have to make extraordinary arrangements to actually be able to go to court and watch what's happening," said Jeff Hermes, an OpenCourt advisory board member and director of the Digital Media Law Project at the Berkman Center for Internet & Society at Harvard University. "OpenCourt serves an educational function in terms of understanding what happens in the Quincy District Court, in particular, but on a broader basis, to inform people what happens in the courts on a day-to-day basis."

Today's traditional news media don't have the resources to put cameras in every courtroom. And the high-profile cases that are broadcast live don't necessarily reflect typical court proceedings. One of OpenCourt's goals is to provide the public with a broader view of what actually happens in courtrooms, including more mundane or less sensational cases, such as legal interpretations of particular constitutional amendments.

"I think people think that day-to-day proceedings are more exciting than they are because of what they see on television," said Lee J. Gartenberg, the director of Inmate Legal Services for the Middlesex County Sheriff's Office, and a member of the Massachusetts Bar Association's executive management board. "There are very routine, mundane matters that a court deals with on a daily basis that might not have as much interest as the more celebrated trials, or the types of things that T.V. gives the perception that happens all the time."

OpenCourt's Davidow hopes his group's model will be replicated across the country, resulting in, for example, one reporter being able to cover multiple courtrooms without having to be in all of them. "It would be one way to monitor a lot of what's going on all at once."

The SJC invites cameras into courtrooms

Massachusetts state courts have, with certain exceptions, allowed cameras in its courtrooms for some time, and shortly before issuing its Barnes decision, the SJC issued, on March 2, Rule 1:19 governing "Electronic Access to the Courts," effective July 1, 2012, laying out the guidelines for broader media access (see related story, page 4).

Federal courts have been more restrictive. Underway is a three-year pilot program testing videotaping in 14 federal courts, including the District of Massachusetts, but there are significant differences between the federal program and OpenCourt's model.

The federal program:

  • Doesn't allow live streaming; rather, video footage will be archived and posted online later.
  • Allows only civil matters to be filmed.
  • Sessions are recorded by court employees, not the media.
  • The judge and both parties must give consent to be filmed. With OpenCourt, judges alone decide whether a live video feed will be allowed.

Indeed, consent is one of the thorniest issues with cameras in courtrooms and live streaming, pitting concerns about the right to privacy against First Amendment rights.

Denise Squillante, the MBA's immediate past president, frequently appears in probate and family court, where she thinks a person's right to privacy outweighs the public interest in some cases.

"What I'm hoping for is an accurate balance, the balance between the public's right to know and a person's right to privacy," Squillante said. "Because when you're in those courtrooms day in and day out, in those trenches, you really see some serious, sensitive issues that can have implications on those individuals forever."

Airing those issues on the Internet can have a ripple effect, first showing up on OpenCourt or a court's website, but later on social networking sites, resulting in unintended consequences for those involved. "That's what I'm afraid of," Squillante said. "Years ago, we did not have the mechanisms to communicate and spread information the way that we do today."

The SJC's recent ruling has made Squillante more fearful than ever that having cameras in the courtrooms will have unintended results. Although OpenCourt has a policy of not publishing the names of minors in its recordings, the SJC decided it would be unconstitutional to mandate a redaction of minors' names in these cases.

Davidow, who was pleased with the decision, said "WBUR is a responsible news organization and never had [any] intention of posting that material, but it was not the court's role to act as the editorial voice of any news organization."

The SJC wrote:

We conclude that any order restricting OpenCourt's ability to publish -- by "streaming live" over the Internet, publicly archiving on the Web site or otherwise -- existing audio and video recordings of court room proceedings represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution. Such an order may be upheld only if it is the least restrictive, reasonable measure necessary to protect a compelling governmental interest.

"I think the court's decision was affirming of the practices and efforts that OpenCourt has made working with all of the various stakeholders, both at the Quincy District Court level as well as with the state's judiciary media committee," Davidow said. "It made us feel like we had done a lot of due diligence along the way."

Squillante believes there is still a long way to go before the correct balance will be reached. "I think we need to re-look at the public records law and have a determination of what sessions should be closed or not. There's going to be some unintended results from this [and] implications for all of that are huge."

Squillante's fears of allowing too much access have not been ignored. While she still isn't satisfied with the current system of determining what's appropriate for the cameras and what the future may bring, certain measures have been taken to ensure particular events don't get airtime. Those include events involving minors and victims of sexual assault. Other restrictions include broadcasting an informant's testimony and motion to suppress hearings.

"I think within the federal judiciary overall, there are different views on whether there should be cameras in the courtroom," said the Hon. Denise Jefferson Casper, of the U.S. District Court of Massachusetts. "I think this [pilot program] may show what the experiences are and whether people think that cameras have an adverse effect in any way."

This isn't the first time the federal courts have tried to put cameras in its courtrooms. A three-year pilot program was implemented in 1991 that permitted electronic media coverage of civil proceedings. At the end of the trial period, the Judicial Conference didn't approve the use of cameras for either civil or criminal proceedings, citing the "intimidating effect of cameras on some witnesses and jurors."

Do cameras make the system better?

Even though the 1991 pilot program didn't lead to cameras in federal courtrooms, some argue that cameras will lead to a better understanding of and more confidence in the judicial system. Retired U.S. District Court Judge Nancy Gertner is one of them.

Gertner, who is also an OpenCourt advisory board member and professor at Harvard Law School, doesn't feel there is a need for any more experiments at the federal level or that the argument that technology in the courtroom will be obtrusive is valid.

After having cameras in Massachusetts courts and other courts around the country for so many years, she said, "We know that's not true. And to the extent it does affect the participants, it makes people better judges, better lawyers, more carefully prepared."

Gertner says she felt the same when she was a defense lawyer.

"I tried cases that were covered by the media," Gertner said. "I would go home each evening and watch the preceding day's video on Court TV. [I] could critique my performance, better understand how the defense was playing, etc. It was a plus on all sides."

"I hope that we allow cameras in the federal courts to the same extent that they are in the state court," Gertner added. "And if there are issues with respect to victims or jurors, they can be separately addressed. "The bottom line is 'public' has a different meaning today. It doesn't mean access to courts if you wait in line and happen to get a seat and sit in the proceeding. 'Public,' in all aspects, has to mean video and audio and the Internet."

©2014 Massachusetts Bar Association