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The cover of John Lennon’s 1968 record Two Virgins shocked the world by showing Lennon and Yoko Ono naked, which was an unheard of act of controversy for a popular celebrity at the time. Today, however, public nudity in the context of protest has become prevalent around the world. This trend holds true in the United States as well, as there are numerous examples of protesters utilizing nudity as a method of protest. Many groups have recognized that the utility of and prominent reasons for protesting nude include the ways in which it immediately garners attention, fosters discussion in the media, and places the protesters’ messages into the public sphere.
The recent phenomenon of protesting nude raises legal questions concerning conduct as protected speech and freedom of expression. The Supreme Court has recognized that not all forms of expressive conduct are protected as “speech” under the First Amendment to the U.S. Constitution. The act of protesting nude, however, is likely not protected under the First Amendment. Several court decisions have highlighted that utilizing nudity in protest is only protected under the First Amendment if the protester’s message is intertwined with the conduct itself. While protesting nude is likely not protected under the First Amendment that does not mean it is not otherwise protected. . .
In Commonwealth v. Winfield,1 the Massachusetts Supreme Judicial Court (SJC), in a matter of first impression, held that the First Amendment right of access to a criminal trial—as applied to the states through the Fourteenth Amendment—and the common-law right of access to judicial records did not extend to a backup room recording that was not the official record of the trial.2 In 2007, Keith Winfield was convicted of two counts of forcible rape of a child under the age of sixteen, indecent assault and battery of a child under the age of fourteen, and assault and battery of a child causing serious bodily injury.3 The Massachusetts Appeals Court affirmed the convictions.4 Steve Audette, a film producer, is making a documentary film concerning the defendant’s prosecution and convictions.5 Audette says that the documentary “will examine, among other things, Winfield’s continued assertion of innocence in light of the evidence presented at trial.”6
The court reporter during the trial was a “voice writer,” which means that she creates a “voice-over recording” on to a tape recorder by wearing a special mask and repeating everything that is said at the trial.7 The court reporter then created the official transcript of the trial from the voice-over recording.8 In addition to the voice-over recording, the court reporter had a separate audio room recording during the trial as a backup, which presumably recorded everything said at the trial, including inflections, nuances, and pauses made by each speaker.9 Audette purchased a copy of the trial transcript from the court reporter, but also requested a copy of the audio room recording.10 The court reporter would not release a copy of the room recording unless she was directed to by the court; accordingly, Audette filed a motion asking the court to order the reporter to provide him with a copy of the audio room recording arguing that his First Amendment and common-law rights of access to judicial records guaranteed him access to the audio recording.11 The trial judge concluded that when a transcript of the trial is available an individual is not entitled to the backup room recording because the room recording is not a judicial record subject to the right of public access under the First Amendment or common law.12 The judge reported her decision to the Appeals Court and the SJC took the case on their own motion.
Common-Law Right of Access to Judicial Records
There is a long-standing right of public access to judicial records in Massachusetts that “is governed by overlapping constitutional, statutory, and common-law rules.”13 The long-recognized common-law right of access to judicial records is not restricted to a certain class of persons, but rather is available to the entire public.14 The Supreme Court first considered the common-law right to inspect and copy judicial records in Nixon v. Warner Communications, Inc.15 The Court in Nixon established a presumption in favor of public access to judicial records, but went on to explain that it was only a presumption.16 This presumption of public access both allows the public to keep a watchful eye on the government and to make sure its public servants are properly carrying out their duties.17
The presumption of public access, however, only applies to judicial records. Thus, the threshold question when determining if a document should be open to the public is whether it constitutes a “judicial record.”18 Under Massachusetts case law, if a document or recording is kept in the court file then it is considered a judicial document accessible to the public, unless it is impounded.19 The court has the power to impound the files of a case and deny the public access to them “when justice so requires.”20 In determining when the right of access to judicial records should be overridden, courts analyze all relevant factors, including the public’s interest in understanding the trial and whether the disclosure of the information would allow for improper use such as scandalous or libelous purposes.21
First Amendment Right of Access to Criminal Trials
The First Amendment inherently grants the public, along with the press, the right of access to criminal trials.22 This right under the First Amendment also acts as an “effective check” on the judiciary.23 The First Amendment right only applies to judicial documents. Whether a document is a judicial document hinges on whether the document was filed in court, or was otherwise integrated into the court’s adjudicatory proceedings.24 This right of access also inherently includes the right to purchase a transcript of the proceeding that was open to the public. The Supreme Court in Press-Enterprise, Co. v. Superior Court25 equated the right to attend a hearing with the right to obtain a transcript of the hearing, and reasoned that any denial of a transcript request “would frustrate what [the Court has] characterized as the ‘community therapeutic value’ of openness.”26 Further, the First Amendment right of access to the courtroom provides a strong presumption that those that cannot attend the trial may still learn what happened during the proceedings by purchasing a copy of the transcript.27
The First Amendment right of access, like the common-law right of access, is not absolute. There is a strong constitutional presumption in favor of a public trial. Other important interests, however, may overcome this presumption.28 A judge may find on a case-by-case analysis that closing the courtroom is “essential to preserve higher values and is narrowly tailored to serve that interest.”29 The party that opposes the right of access has the burden of proving that the overriding interest is narrowly tailored to serve that interest.30
Massachusetts Rules and Statutes Enabling Right of Access
Massachusetts has its own statutes, rules, and standing orders that require official transcripts be made available to the public. Massachusetts superior courts require that a court reporter, where available, create a transcript of the case.31 Under Massachusetts law, a court reporter is a shorthand reporter or voice reporter who is a sworn officer of the court appointed by the justices of the superior court to make a “verbatim record” of the trial.32 The court reporter then, upon request “shall furnish a transcript of his notes, or any part thereof, taken at a trial or hearing.”33 The transcript, once it has been “verified by the certificate of such stenographer,” is then admissible as evidence of the testimony given at the trial or the hearing and is what is ultimately used as the “record” on appeal.34 In Massachusetts, if there is no certified transcript than an electronic recording of the trial or hearing is the official record of the proceeding.35
The SJC’s Holding
The SJC held that Audette did not have a constitutional, common-law, or statutory right to the backup room recording when a certified transcript was the official record of the trial.36 The court reasoned that if Audette had attended the trial he would have had no constitutional right to make an audio recording of the trial and the court saw no reason to extend the First Amendment right of access to include unofficial electronic recordings where there is an official record of the trial.37 The court further explained that the common-law right to judicial records did not extend to the backup room recording because this right only applies to judicial records, which in this case included only the official transcript.38
The court held that in this case they only needed to determine whether the presumption of public access should apply to the backup room recording. The question that must be answered to make this determination is “whether a record that is not kept in the court file is nonetheless so important to public understanding of the judicial proceeding that it should be presumed to be public.”39 The court ultimately decided that where there is an official transcript available to the public, the backup room recording does not pass this test because it is more likely to create public confusion than aid public understanding.40 The SJC, however, clarified that this does not mean the public may not request access to the room recording, but rather that the “burden is not on the opponent of the motion to overcome the presumption of public access by showing good cause to impound the presumptively public recording.”41 The burden rests on the proponent of the motion to show why the interests of justice, in the particular case at hand, would be served by making a document that is not inherently available to the public.42 In the end, the judge decided in this case that the room recording was not a judicial record, but found that even if it were, if the Commonwealth had to show just cause to impound it, the burden would have been met. Taking all factors into consideration, the SJC found that preventing the disruption to the peace of mind of the victim and victim’s family from hearing the recording again outweighed Audette’s interest in giving a meaningful presentation to his viewers.43
The SJC conveyed a prudent tone in their holding and left room for other scenarios to arise where a backup room recording may be available to the public. The court did not determine whether the presumption of public access could apply to any document or recording that is the property of the court but is not referenced in the court file.44 Rather, the court only decided that when a verified transcript is available in the court file, making it a judicial document, a backup room recording would not be considered a judicial document, and is thus not presumptively available to the public. Indeed, the document may still be available to the public as long as the party seeking the recording can show why the interests of justice are being served by making it public.45 This leaves the court with possible outcomes where a document or recording that is not in the court file could still be made public. Yet, the SJC’s distinction between a presumption for access to “judicial records” and a presumption against access to recordings of trial proceedings that are court property raises important legal questions. The Supreme Court has held that “[w]hat transpires in the court room is public property.”46 The SJC conceded that the backup recordings at issue are indeed “the property of the court.”47 Thus, by holding that the backup recordings are not “judicial records” because an official transcript exists, the court’s holding draws a line in the sand, marking where the presumption of access shifts away.
In Massachusetts, the most immediate impact of the SJC’s decision will be felt by filmmakers or artists, such as Audette, who wish to have access to backup room recordings of highly contentious or troubling cases. These are the types of cases that interest filmmakers because the stories being captured usually generate great public interest. A documentary by its own definition is “a work, such as a film, presenting its subject matter factually, often with news films, interviews, and narration.”48 Filmmakers and artists best portray the actual happenings at trials by using the witnesses’ own words, in their own voices. This has the most impact on the audience. Using the recording also allows the filmmaker to preserve the trial, as it happened through the eyes of those that decided the defendant’s fate, for future audiences to experience as if they were there. Without access to the backup room recording, the documentary could lose a measure of its authenticity.
The SJC did allow Audette to purchase a copy of the transcript from the court. However, the SJC did not reverse the lower court’s holding that even if the backup room recording was considered a judicial record the prosecution would have met its burden of showing good cause to have the record impounded. Future litigation will likely raise the difficult question of whether a backup recording that is the judicial record of a public trial can still be concealed from the public in the interest of protecting a child victim. The constitutional question raised would certainly be a difficult one to answer. Indeed, Massachusetts has a history of providing special protections, which conflict with the U.S. Constitution, to the victims of crimes.49 Thus, a court confronted by this scenario, keeping in line with Winfield, may find that the interests of justice are better served by allowing the filmmaker access to the recording.
Mary C. Ambacher, Case Note, Back It Up: Massachusetts Supreme Judicial Court Holds First Amendment and Common-Law Rights of Access to Criminal Trial Do Not Extend to Backup Room Recording, 2 Suffolk U. L. Rev. Online 18 (Feb. 18, 2014), http://suffolklawreview.org/ambacher-winfield.