SJC keeps the web open for Quincy court

By John R. Ellement, Globe Staff

The state’s highest court today ruled that a 21st-century media project that livestreams Quincy District Court hearings on the Internet is protected by provisions of the US and Massachusetts constitutions, which, back in the 18th century, barred government control of the press.

The Supreme Judicial Court also ruled that the project, OpenCourt.us, can archive the recordings it makes of daily court hearings and post them on its website without first getting approval from judges.

“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 US Constitution’s First Amendment and Article 16 of the Massachusetts Declaration of Rights, Justice Margot Botsford wrote for the court.

“Such an order may be upheld only if it is the least restrictive, reasonable measure necessary to protect a compelling governmental interest,’’ Botsford wrote.

The SJC lifted an order banning Opencourt.us from posting a videorecording of a dangerousness hearing of an alleged human trafficker Norman Barnes last May 27, who is accused of kidnapping a teenaged girl off a Boston street and forcing her into prostitution.

Norfolk District Attorney Michael Morrissey wanted the recording kept off the website because the girl’s full name, the names of two relatives who helped her escape from Barnes, the name of her high school, and the street where she allegedly met Barnes were disclosed in it, despite a judge’s order that identifying information should not be disclosed during the hearing.

Separately, defendant Charles Diorio wanted to ban posting of his July 5 arraignment on charges including kidnaping and armed assault in a dwelling, arguing through his attorney that it could prejudice him in Chelsea, where he was being prosecuted in a separate violent crime.

In both instances, the court said the parties failed to show that government censorship of the recordings was justified in light of constitutional protections against “prior restraint’’ of the press and the media. Such censorship can only take place after a judge makes sure that it is the “least restrictive reasonable alternative’’ to balance the privacy rights of the parties in the case and the constitutional freedoms.

“There can be no restraint on publication of the recording unless the court also determines that such a restraint is necessary to protect a compelling governmental interest and is the least restrictive reasonable method to do so,’’ Botsford wrote.

The SJC said that, because the issues are likely to surface again, and not just in the Quincy courthouse, it wants its judiciary-media committee to craft rules that will guide both judges and the media for future court hearings.

Morrissey, the Norfolk prosecutor, said the SJC has to revamp that committee because of a “glaring deficiency” - no one currently a member of the panel practices criminal law or deals with crime victims. He said a prosecutor, a defense attorney and – most importantly to him – a victim rights advocate must be included in drafting the new rules.

Opencourt.us is affiliated with public radio station WBUR and is an experiment in bringing court proceedings to the public online. The website streams some of the court’s hearings live daily and then archives the videos for the public to view on its website.

John Davidow, executive editor/new media at WBUR, said OpenCourt will keep its promise and will delete references to the teen when it posts the Barnes hearing video. He welcomed the SJC ruling as one that tells judges they cannot “edit a news organization’s content’’ and that WBUR and OpenCourt “are free to make the proper editorial decisions.’’

John R. Ellement can be reached at ellement@globe.com.