A bill filed on January 21, 2012 in
the Massachusetts Senate would impose up to one year's imprisonment on any
person, including a member of the media, who discloses the identity of a
witness in a criminal proceeding who is under the age of 18 - even if the
witness gives his or her testimony in open court. The Joint Committee on the
Judiciary will hold a hearing on the bill on Tuesday, February 7 at 1:00 p.m.
Introduced by Assistant Majority
Leader John Hart, Jr. (D-Boston), Senate Bill 785 would prohibit
"attendees" of a criminal trial, including "members of the
media," from disclosing the name of any minor witness to a crime, and from
disclosing "any other information" about such a witness. The
bill would also prohibit publication of any picture of such a witness, whether
taken in court or not, and would require any information about the witness to
be filed under seal, without the necessity of a court order.
The bill, in short, would
criminalize the reporting of newsworthy information about court proceedings, in
violation of the First Amendment. The U.S. Supreme Court has long held that the
government may not impose "prior restraints" on the news media except
in exceptionally grave cases, such as those involving serious threats to
national security. Nor can a "prior restraint" be imposed as a
general rule. In the extremely rare circumstances where such a prohibition is
appropriate, it must be made through a judicial determination supported by
evidence and findings, as well as narrow tailoring of the order to fit the
The bill also violates
constitutional rules that require court proceedings to take place in the open.
The press and the public have a constitutional right to attend criminal trials,
absent a compelling interest supporting closure of the courtroom. Although
protecting the psychological well-being of children can constitute a compelling
interest in some cases, that interest does not justify blanket rules such as
those contained in Senate Bill 785.
Prince Lobel's media lawyers are
working with media organizations throughout Massachusetts and beyond to educate
the public about the bill's constitutional infirmities. The New England
Newspaper and Press Association, Massachusetts Newspaper Publishers
Association, New England First Amendment Coalition, and Washington, D.C.-based
Reporters Committee for Freedom of the Press have all indicated that they may
be testifying or submitting comments in opposition to the bill.
The committee hearing will take
place at 1:00 on February 7, 2012, in Room B-1 of the State House in Boston,
If you have any questions about the
information presented here, please contact Jeffrey
J. Pyle, a partner in the Media
Law Practice Group and the author of this Alert. You can reach Jeff
at 617 456 8143 or jpyle@PrinceLobel.com. If you would like to learn
more about the legal services Prince Lobel's Media Law Practice Group can
provide to your organization, please contact Group Chair Robert
A. Bertsche at 617 456 8018 or rbertsche@PrinceLobel.com.