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Last March, in an important ruling titled "Commonwealth vs. Norman Barnes," the Supreme Judicial Court of Massachusetts ordered that, once a court has granted permission for electronic recording, any restriction on the right to stream, broadcast, publish or archive what is recorded "represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment."
Hermes, of Harvard's Digital Media Law Project, who is an advisor to OpenCourt, sees the resulting legal situation as a "three-part structure." Here's how he describes that: First, "There is a First Amendment right to be in a criminal court." Second, "There is no constitutional right to run a camera there." Third, "But, if the judge allows the camera to run, there is a nearly absolute First Amendment right on the part of the media outlet to disseminate the recording."
OpenCourt, having survived two supreme-court challenges, live-streamed its first criminal trial from Quincy in September. More challenges followed, but OpenCourt prevailed and continues.
As one justice wrote: "There is no reason to single OpenCourt out and impose on it a variety of restrictions that do not apply to other media organizations." Said another: "It's always been my position that the more the public knows about what happens in the judicial system, the more confidence they'll have that the judicial system is protecting their rights."
Judge Laser's 'media event'
In August 2011, when word leaked that attorneys for the West Memphis Three may have reached an agreement with state prosecutors that would allow for the men's release, Circuit Judge David Laser of Jonesboro, who would be presiding, expected "a media event." And he was not looking forward to it. He had already announced a ban on cameras.
But by then, the times — and technology — had changed. The role of cameras in the West Memphis case was about to come full circle.
As requests from media poured in, Stephanie Harris of Little Rock, who works as communications counsel for the Arkansas Supreme Court, e-mailed Laser an offer to help. Harris, an attorney with newspaper experience, considers it part of her job to assist courts with the logistics of working with media. Besides abiding by the Supreme Court's rules, she said, her only constraint is that she remain neutral.
Laser accepted her offer, and within about 24 hours the two coordinated a plan to allow a single pool camera in the courtroom. Harris praised the judge's cooperation. "He was very aware of the interest in this case," she said. "He was very sensitive to the feelings on all sides, and he wanted the public to have access. He wanted the media to have access and he wanted to have transparency."
"Although courts are open to the public," she observed, "I would say that traditionally, there's been a practical obscurity." She understands courts' many reasons for that, but adds, "I also think the media are responsible. They are sensitive to those issues, and if they're allowed access, they sure don't want to mess it up. So I think the [courts'] fears are valid, but I also think they can be addressed."
On the day that the West Memphis Three were freed, media of all kinds clambered outside the courthouse. The scene was almost a circus. But inside, Laser's courtroom was calm. One pool TV camera, operated by Little Rock's KARK, stood on a tripod in the jury box, a point from which it could record the judge, the three men who had agreed to enter a plea, and the rest of the courtroom.