OpenCourt Opening and Reply Briefs to the Mass SJC (October 2011)

COMMONWEALTH OF MASSACHUSETTS v. BARNES; TRUSTEES OF BOSTON UNIVERSITY, D/B/A WBUR-FM AND OPENCOURT v. COMMONWEALTH OF MASSACHUSETTS; DIORIO v. FIRST JUSTICE OF THE QUINCY DIVISION OF THE DISTRICT COURT DEPARTMENT | Nos. SJC-11035, SJC-11036, SJC-11052 | Mass. October 17, 2011, October 28, 2011 | The Cyberlaw Clinic and co-counsel at Boston University’s Office of General Counsel filed these opening and reply briefs with the Massachusetts Supreme Judicial Court on behalf of WBUR’s OpenCourt project in connection with two separate challenges to OpenCourt’s archiving of audiovisual recordings of court proceedings in Quincy District Court. In the Barnes case, the Quincy District Attorney (on behalf of the Commonwealth) argued that WBUR’s online archive interfered with the privacy rights of crime victims. In Diorio, a criminal defendant (represented by the Committee for Public Counsel Services) argued that the archive jeopardized his right to a fair trial. Single Justice Botsford initially considered both cases and referred them to the full SJC, which heard oral argument on November 8, 2011. In a unanimous 5-0 decision issued March 14, 2012 (reported at 461 Mass. 644 (2012)) the SJC ruled in favor of OpenCourt, concluding “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.”

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