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Federal courts are well-equipped to provide transparency, but as retired federal judge Nancy Gertner explained last week during the New England First Amendment Coalition‘s annual awards luncheon, “we are doing the opposite — and it is critical that we do something about it.”
NEFAC hosted its fifth annual New England First Amendment Awards luncheon on Feb. 20 in Boston, honoring Gertner with its 2015 Stephen Hamblett First Amendment Award. The award is named after the former publisher of the Providence Journal and given to an individual who has promoted, defended or advocated for the First Amendment.
During the luncheon, the coalition also honored slain journalist James Foley with its annual Freedom of Information Award and announced the James W. Foley Scholarship, which would allow a local journalist to attend its New England First Amendment Institute each year at no cost. Harriet Cady, a long-time open government advocate from New Hampshire, received this year’s Antonia Orfield Citizenship Award.
Gertner, who spent 17 years as a judge for the U.S. District Court of Massachusetts, addressed the need for courts to be more accessible and open to the public, saying that “just when everything is transparent, and just when we have the ability to digitize and stream, we are shutting things down.”
The U.S. District courthouse in Boston was built to accommodate cameras, she told about 175 luncheon guests. There are spots for hidden cameras in each courtroom, Gertner said, so “the notion that cameras would be intrusive is ridiculous. The courthouse was designed for streaming video and these kinds of things.”
“The state courts have been dealing with cameras in, candidly, cases that are so much more dramatic and incendiary than anything that’s going on in the federal court, except Tsarnaev, for example, or Bulger,” she said. “For the most part, the state courts all across the country have been dealing with cameras for almost 40 years and the republic still stands.”
Gertner acknowledged that the reason cameras continue to be banned from federal courts isn’t clear, though she did explain that many judges on the federal bench are “incredibly uncomfortable dealing with the press.
In the last several decades, Gertner said, technology has emerged to help journalists better cover the court system, providing tools that can help newsrooms cope with tight budgets. Video streaming exists, she explained, so we should be using it to allow journalists to view court proceedings from their desks.
The camera ban “is going to stop,” Gertner added. “It’s just a matter of when.”
‘Trusting the Power of Media’
On behalf of their son James, Diane and John Foley attended the luncheon to accept NEFAC’s Freedom of Information Award. James Foley, a freelance journalist from New Hampshire who reported for Boston-based GlobalPost, was murdered by ISIS in August 2014. Diane Foley spoke about the goals of the James W. Foley Legacy Foundation and about the difficulty trying to access information about her son’s captivity.
“We were not allowed to know anything,” she said. “So as far as a right to know, we were kept totally in the dark throughout his whole captivity. And it was a very daunting experience. We should have an ability to at least know what our government can and will do for us.”
In hindsight, explained John Foley, media silence hampered the effort to rescue James. The Foley family took the advice of the FBI and did not go to the press with information about their son, instead opting to let the U.S. government manage the situation on its own terms.
“I think those in Jimmy’s situation did not benefit from media silence,” John said. “The people that are trying to retrieve the captive are allowed to take their time. The captors are allowed to do whatever they wish. If we had to do it over again, Diane and I both agree that we would not ever be media silent. We would use the power of all you people in this room to change the attitudes and enforce action in this country where votes speak. And only the press can do that.”
Throughout the ordeal, John learned that media organizations in other countries were working together to pressure their respective governments to act on behalf of their captured journalists. Reporters in these countries, representing different organizations, would meet regularly to vet rumors and exchange information, he explained.
“They were trusting the power of media to make change in lives and government,” John said, then giving an impassioned plea to U.S. journalists to do the same.
“We hope to not only improve the safety of freelance journalists, but to really lobby for the media organizations to defend their colleagues, not eat their young, not wait for the next big story, but to actually group together to defend those people who were on their mission to deliver the truth but were struck down by being captive,” he said.
“We need to protect each other. Otherwise, there is no freedom of the press,” he added. “We can talk about it, but if we don’t protect it, then it’s not going to be there.”
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.