Lawmakers Seek to Jail Journalists for Identifying Child Witnesses

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 circumstances.

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, Massachusetts. 

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.