Law360 (November 16, 2020, 5:27 PM EST) --
Courts hold trials by Zoom. They stream hearings on YouTube. They distribute dial-ins.
Even the U.S. Supreme Court, long hostile to technology, provides a livestream. In whatever form, digital attendance provides the public with contemporaneous access to court proceedings unlike ever before.
But this forced shift out of the analog world has not created a utopia of modern, transparent courtrooms accessible at a moment's notice. Whether a lack of resources or a lack of initiative, this shift to remote proceedings has put many judicial proceedings out of the reach of the public.
Some courts do not provide any digital public access, while nevertheless holding hearings in person. Others allow only lawyers access to the remote proceedings and not the parties.
Eight weeks into the pandemic this lack of access might have been excusable. Eight months in it is not.
There is a presumptive common law and First Amendment right of access to judicial proceedings; and in criminal cases, the accused has a Sixth Amendment right to a public trial. If our courtrooms are going to go remote, they should — indeed, constitutionally must, as the Minnesota Fourth Judicial District recently held in the George Floyd case — go remote for the public too.
Courts across the country have recognized as much in rules and regulations adopted in response to the COVID-19 pandemic.
For example, the U.S. District Court for the Eastern District of California, "recognizing the presumption of a public right to access court proceedings, ... is providing for members of the general public to listen to court proceedings still being held, by telephone or digital audio connection."
The U.S. District Court for the Eastern District of Missouri wrote: "This Court continues to support the presumption of public access to hearings and shall make accommodations for access available for the duration of this national emergency." Others agree.
Courts are right to emphasize the importance of remote public attendance of judicial proceedings under these extraordinary circumstances. Yet, even as courts navigate the ins and outs of remote public hearings, a related issue with constitutional implications has presented itself as well: whether these courts can impose restrictions on the press and public preventing them from remotely recording or further disseminating those remote judicial proceedings.
In the U.S. District Court for the District of Columbia, for example, the court's "Public and Media Access to Court Proceedings during COVID-19 Emergency" page reminds the public that "[p]ersons remotely accessing court proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings."
The Eastern District of Missouri cautions that "[a]ll participants are reminded of the prohibitions regarding photographing, recording and broadcasting of court proceedings." Further, members of the public "may face sanctions including, restricted entry to future hearings, denial of entry to future hearings, or any other sanctions deemed necessary by the judicial officer."
These prohibitions of what the public can and cannot do in a world of digital attendance at court proceedings are not aberrations. In the U.S. District Court for the Eastern District of Virginia, the district is considering a permanent rule providing that "[a]ny person remotely participating in any court proceeding may not record or cause to be recorded any such proceeding without the express consent of the presiding judge."
And some courts have acted on these rules, punishing the press for violating them.
In June, for example, the U.S. District Court for the Eastern District of Michigan suspended for 90 days court access for three New York Times reporters for taking and publishing screenshots of a Zoom hearing. According to that district, "Any further violations of this nature will result in broader sanctions and/or monetary penalties against you or possibly other direct employees or freelance employees of The New York Times."
There are any number of problems with these kinds of rules. Initially, they often rely on existing but inapt rules for analog courtrooms: rules that prohibit recording in a physical courtroom in an actual courthouse.
The Eastern District of Missouri, for example, bases its COVID-19 rule against recording remote hearings on a local rule that prohibits all "means of photographing, recording, broadcasting and televising ... in any courtroom, and in areas adjacent to any courtroom." The Eastern District of California relies on a similar rule. The Eastern District of Michigan points to a local rule titled, "Possession and Use of Electronic Devices in Federal Court Facilities."
And to the extent supporters of recording and dissemination bans point to Federal Rule of Criminal Procedure 53, originally adopted in 1946 long before remote proceedings were contemplated, that argument suffers from a similar deficiency.
The rule provides: "Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom."
While a court might be able to prohibit the taking of photographs in the courtroom and broadcasting of proceedings from it, it is an entirely different question to prohibit what a reporter or the public can do outside the courtroom from, for example, a home office. Allowing control over the latter would greatly expand courts' powers over nonparties largely unknown and uncontemplated until now.
As Supreme Court Justice John Marshall Harlan observed in Estes v. Texas, albeit in the 1960s:
Nor does it make much sense to create a line at the virtual courthouse door based on rules established to address issues confronting recording and broadcasting from a real life courtroom.
By and large, rules prohibiting recording while physically present in courtrooms are intended to preserve decorum, prevent distraction, and put a stop to potential juror bias as a result of media attention obvious from the presence of the press and cameras. Yet, these considerations do not obtain when a reporter records digital hearings, unknown to the participants, from the comfort of her home office.
True enough, the need to protect privacy remains — indeed, privacy considerations may be increased in the context of the recording of remote proceedings. But the starting point is, as the Supreme Court put it in its 1947 decision in Craig v. Harney, this: "What transpires in the courtroom is public property."
And simply adopting blanket rules barring recording or dissemination of remote public court proceedings under all circumstances is taking a sledge hammer to a problem better served by the deft hand of a surgeon with a scalpel. And such a scalpel is necessary as such blanket prohibitions likely run afoul of Supreme Court precedent.
In the late '70s case of Oklahoma Publishing Co. v. Oklahoma County District Court, for example, reporters were present at a detention hearing for a child accused of murder. At trial, they learned the name of the minor and captured a picture of the minor on his way into the courthouse. "Thereafter, a number of stories using the boy's name and photograph were printed in newspapers within the county, [and] radio stations broadcast his name and television stations showed film footage of him and identified him by name," according to court filings.
At the subsequent pretrial hearing, a lower court entered an order enjoining further dissemination of that information to the public. Specifically, the court "enjoined members of the news media from 'publishing, broadcasting, or disseminating, in any manner, the name or picture of (a) minor child.'"
On appeal, Oklahoma Publishing Company asked the Supreme Court "to hold that the First and Fourteenth Amendments will not permit a state court to prohibit the publication of widely disseminated information obtained at court proceedings which were in fact open to the public." And the court agreed.
"We think," the court wrote, "this result is compelled by our recent decisions in Nebraska Press Association v. Stuart and Cox Broadcasting Corp. v. Cohn." Those two decisions had established a paradigm, inescapable in Oklahoma Publishing: "[O]nce a public hearing had been held, what transpired there could not be subject to prior restraint."
Other cases similarly draw the validity of these prohibitions into doubt but on other grounds. For example, courts have acknowledged their lack of practical power to prevent the public from republishing court materials once they have been made public outside the courtroom.
As the U.S. District Court for the District of Columbia recognized in its 2013 decision in Hodge v. Invisible Empire, while a court can mark a judicial opinion "'not intended for publication,'" it "cannot prevent or prohibit the publication of this opinion in the various and sundry electronic and legal databases (as it is a public document)."
The U.S. Court of Appeals for the Second Circuit has agreed with that logic under other analogous circumstances. In Gambale v. Deutsche Bank AG, a lower court had made public certain information at a hearing and in an unsealing order. Even though the Second Circuit believed that prior disclosure of the information improper, it recognized the obvious in its 2004 opinion: "We simply do not have the power, even were we of the mind to use it if we had, to make what has thus become public private again."
Sure, courts may well try to extend the nonpublic fora of the courthouse and the rules that govern it to the digital space to create a "virtual courthouse" in the press and the public's living rooms. Public access is provided as a matter of grace, the argument would go, and not constitutionally required.
And, it would be argued, these hearings would normally be evanescent rather than preserved on the internet indefinitely. So we should try to maintain that analog obscurity in our novel digital experiment too. Thus, a court can institute rules in the virtual courthouse just as it does in the actual one.
But still, the sundry authority briefly mentioned here should give courts long pause before adopting rules conditioning public access on blanket prepandemic restraints. At the very least, it is worth recognizing that years down the road, the decisions that are made now — while they may seem like a considered concession of a constitutional right in strange times — will be normalized too.
The problem with rules adopted for extraordinary times is that they often outlast them. Judicial proceedings in 20 years, all widely available online, will nevertheless be subject to far-reaching prohibitions on republication, on pain of contempt, unlike any other public information relating to our government.
Matthew L. Schafer is assistant general counsel for litigation at ViacomCBS Inc. and an adjunct professor at Fordham University School of Law.
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