Judge's order against publishing juvenile names rejected on appeal

The Supreme Judicial Court of Massachusetts said a juvenile court judge overstepped First Amendment legal boundaries when the judge entered an order that prevented the public and media from publishing the names of children who testified during pretrial hearings about their delinquent involvement with two adults accused of furnishing liquor to minors.

The court’s Nov. 3 decision stems from a case involving Robert and Andrea L. Berkowitz, both adults, who were charged in complaints with contributing to the delinquency of minors and furnishing liquor to minors during a party in their homes.

The court order also prohibited the public and media from publishing the name of any child who engaged in any delinquent conduct in connection with the defendants, or photographing the face of any child who testified during the pretrial hearings.

“The issues before this Court involve a threat to fundamental constitutional rights in this Commonwealth: The First Amendment rights of the public to attend criminal proceedings and the right of the public to have the press report fully on such proceedings,” stated a brief for the George W. Prescott Publishing Company, owner The (Quincy, Mass.) Patriot Ledger, which filed the lawsuit contesting the court’s order.

The court agreed, saying the judge’s order to restrain the publishing of names was not justified because the information was already accessible to the public.

“There is a particularly high burden of justification where, having opened the proceedings and the court records in the Berkowitz cases to the public, the judge sought to restrict the press from reporting fully on the cases,” wrote the court in its decision.

The Ledger originally sought access to the proceedings in the Berkowitz case and to related court records when the Berkowitz’s were arraigned in August of 1997. After the arraignment, the complaints were transferred to the juvenile session of the Stoughton District Court.

The newspaper’s representatives were told that the proceedings were closed to the public and that all court records were sealed.

Soon after, Prescott Publishing moved to intervene in the Berkowitz case to assert a right of access to the court proceedings and to inspect the court records. After a hearing, a judge in the juvenile session entered an order granting the public, including the press, access to the proceedings and to the records in the Berkowitz cases. However, he also issued the order not to publish the names.

“I think it’s a great decision,” said Sarah Columbia, an attorney representing Prescott Publishing. “The court squarely chastises judges not to put in place prior restraints.

“In order for our judicial system, to work efficiently and credibly, it needs to be open to the public. It’s easy to say, ‘Why do you need to know the identity of the witnesses?” Columbia said the public can better understand a verdict if they have all the information in the case – including the identity of witnesses.