The Case of the Vanishing Exhibit: A Defeat for Public Access or a Victory for Public Safety?

Client Alerts · December 30, 2015

A Defeat for Public Access or a Victory for Public Safety?

vanishing-exhibit

“Now you see it.  Now, you don’t.”  It’s a phrase associated with magic tricks—not typically applied to exhibits introduced in public court proceedings.  But it describes exactly what happened recently to an 8-minute video of a self-proclaimed ISIL supporter that was played in federal court in Springfield.

After Alexander Ciccolo was charged with being a felon in possession of a firearm, he was held without bail largely on the strength of a video of his interrogation by an FBI agent, during which Ciccolo defended the actions of the Islamic State terror organization.  “They’re doing a good thing,” he said in the video.  “They’re implementing the sharia, they’re freeing people from oppression.  Wherever they go, they’re changing things.”

After playing the video in open court, the government had second thoughts.  Saying that it had “improperly offered” the unredacted video in evidence at the hearing, it asked the judge for the right to substitute a version of the video in which Ciccolo’s face was entirely obscured.

“The government believes that ISIL recruited the defendant in part through videos posted on social media sites, and that it could effectively use an unredacted version of the defendant’s post-arrest statement … to recruit others,” the U.S. Attorney’s Office told the court in a written motion.  “A redacted version of the video, in contrast, would have significantly less recruiting value.”  (The video with Ciccolo’s face obscured appears here.)

The magistrate allowed the motion in July, and last week she reaffirmed her ruling in the face of a challenge from the Boston Globe.  The Globe had relied on a well-established body of case law holding that a common law presumption of access applies to relevant documents that are submitted to, and accepted by, a court.  “[F]ederal courts routinely have granted public access to recordings presented as evidence in criminal trials,” the Globe argued.  “The government’s submission, unsupported by affidavit, falls far short of justifying an order that effectively denies public access to evidence after it has been entered in a case and relied upon in a judicial ruling.”

Magistrate Judge Katherine Robertson’s December 21 Order essentially describes this case as a close call.  Describing terrorism as an “existential threat,” she said the public “has a strong interest in watching Defendant speak his thoughts.”  Why a U.S. citizen would become “‘obsessed with Islam’ and plan to engage in violence in support of ISIL are questions of substantial public concern.”  She concluded that access to the unredacted video would likely “promote public understanding of a historically significant event.”

Nonetheless, though she conceded that the government bears the burden of proof and must identify important countervailing interests in order to overcome the presumption of access, the judge sided with the prosecutors.  She relied heavily on an FBI agent’s affidavit stating that a terrorism expert had concluded that the unredacted video would be “especially attractive as a propaganda asset” for ISIL, whereas the redacted video would be “practically worthless from the point of view of effective terrorist propaganda.”  She also noted that the redacted video, while obscuring the defendant’s face, nonetheless revealed his “words and the inflections of his voice, as well as his gestures and posture during the interview,” and called the obscuring of his face (otherwise visible in photographs and courtroom sketches) a “narrow remedy.”

Ultimately, the magistrate judge concluded, there was a “compelling interest in preventing the public broadcasting of a recording that, in unredacted form, might contribute to the on-line recruitment of individuals interested in the goals of ISIL, thereby impairing the goals of law enforcement and increasing genuine risks to public safety.”

If you would like any assistance or need more information, please contact the author of this alert, Robert A. Bertsche,  at 617 456 018 or rbertsche@PrinceLobel.com.