Judge finds court can restrict how trial footage is used

A Kentucky Appeals Court judge said yesterday that the judge overseeing a high-profile murder case acted properly when she allowed news cameras into the courtroom only so long as the media agreed to restrictions on how the footage could be used.  

State Appeals Court Judge Michelle Keller denied a request from several media organizations for an emergency stay of the trial court’s restrictions. While the emergency motion was decided by Keller acting alone, a three-judge appellate court panel will revisit the underlying challenge to the restrictions.

The controversy springs from the prosecution of Cheryl McCafferty, who is accused of killing her husband in 2007. The case has received widespread attention in the region, in part because McCafferty claims that her husband battered her.  

Campbell County Circuit Judge Julie Reinhardt Ward, who is presiding over the trial itself, initially allowed cameras in the courtroom that would be shared by the media. But Ward said the footage could be shown only in small portions on daily newscasts and not included on Web sites or blogs. When the media groups covering the trial refused to agree to Ward’s restrictions, she had the pool cameras removed from the courtroom.  

The media organizations — represented by Sheryl Shyder, Jill Meyer, and Monica Dias of Frost Brown Todd LLC — moved for an emergency order barring the removal of cameras. They argued, among other things, that the trial judge imposed an “unconstitutional condition” on access in requiring the media to limit its use of the footage.  

The press groups did not argue that they had an absolute right to bring cameras into the courtroom. Rather, they argued that it was improper for the court to condition the presence of cameras on the press agreeing to limit how the footage would ultimately be used. Such prior restraints on speech, they argued, are presumptively unconstitutional.  

The press groups relied in part on a 1972 Supreme Court ruling in Perry v. Sindermann that “even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interest — especially, his interest in freedom of speech.”  

Keller, the appellate judge, took a narrower view of the “unconstitutional condition” notion, saying that media groups “have no constitutional right to take mechanical audio/video equipment in the courtroom.” Thus, she reasoned, “the judge was not asking the Petitioners to waive a constitutional right.”

The media groups will revisit this argument before the three-judge panel of the appellate court.

“We’re hopeful that a three-judge panel of the court of appeals will agree with us that a court cannot impose an unconstitutional prior restraint in exchange for allowing cameras in the courtroom,” said Dias. “The real loser in this is the public, because the public has lost the ability to see for themselves what has happened in that public courtroom.”