B. Cameras and other technology in the courtroom
Constitutional concerns neither mandate, nor prohibit, televising of trials. The Supreme Court ruled in 1978 that “there is no constitutional right to have [live witness] testimony recorded and broadcast. . . . Nor does the Sixth Amendment require that the trial – or any part of it – be broadcast live or on tape to the public.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 610 (1978). But in Chandler v. Florida, 449 U.S. 560, 583 (1981), the Court confirmed that “the Constitution does not prohibit a state from experimenting with” cameras in the courtroom, and all states have done so to one extent or another. Jurisdictions vary widely, and the issue is governed by state law rather than a constitutional access right.
Judges often rely on Standard 8-3.8 of the American Bar Association’s Criminal Justice Section Standards. It provides that “under rules prescribed by a supervising appellate court or other appropriate authority, a judge may authorize broadcasting, televising, recording and photographing of judicial proceedings . . . consistent with the right to a fair trial and subject to express conditions, limitations, and guidelines which allow such coverage in a manner that will be unobtrusive, will not distract or otherwise adversely affect witnesses or other trial participants, and will not otherwise interfere with the administration of justice.”
In federal criminal trials, Federal Rule of Criminal Procedure 53 provides that generally “the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” Some federal districts allow broadcasting in civil cases. See S.D.N.Y. R. 1.8; E.D.N.Y. R. 1.8. But others follow the admonition of the Judicial Conference that “it would not be appropriate to require . . . non-ceremonial proceedings to be subject to media broadcasting.” In re Sony BMG Music Entmt., 564 F.3d 1, 7 (1st Cir. 2009) (quoting Guide to Judiciary Policies and Procedures, Vol. 1, Ch. 3, Pt. E.4., in overturning decision of district court to allow webcast of hearing).
The Judicial Conference allows federal appellate courts to permit cameras in appellate arguments if they choose to do so. The Second, Third, and Ninth Circuits have voted to allow recording of some oral arguments.
Trial courts increasingly also allow live-blogging or tweeting of proceedings. See Ahnalese Rushmann, Courtroom coverage in 140 characters, 33 News Med. & L. 2 at 28. These rules vary between (and often within) jurisdictions.
The Eleventh Circuit holds that the First Amendment right of access does not include the right to televise, photograph, record, and broadcast federal criminal trials. See United States v. Hastings, 695 F.2d 1278, 1280 (11th Cir. 1983); see also McDonough v. Rundle, No. 15-20038–CIV–ALTONAGA/O’Sullivan, 2015 WL 13594407, *4 (S.D. Fla. 2015). In United States v. Hernandez, a district court in Florida’s Southern District held that the First Amendment right is to attend trial rather than a license allowing cameras or tape recorders into the courthouse. 124 F. Supp. 2d 698, 702 (S.D. Fla. 2000).
For specific authorization regarding the use of cameras and other technology in the courtroom, consult the local rules of the court in question (links to each court's website are provided below and may provide additional information regarding authorization, circumstances where cameras are permitted, limitations on use of footage, still cameras, webcasting, liveblogging and tweeting). For example, Federal Rule of Criminal Procedure 53, provides, "The taking of photographs in the court room during the progress of judicial proceedings or radio broadcasting of judicial proceedings from the court room shall not be permitted by the court," and Southern District of Florida Local Rule 77.1 provides:
Other than required by authorized personnel in the discharge of official duties, all forms of equipment or means of photographing, tape-recording, broadcasting or televising within the environs of any place of holding court in the District, including courtrooms, chambers, adjacent rooms, hallways, doorways, stairways, elevators or offices of supporting personnel, whether the Court is in session or at recess, is prohibited.
Most district courts within the Eleventh Circuit follow the United States Supreme Court’s rules banning video recording of proceedings to not allow such coverage. However, during the COVID-19 pandemic, the Eleventh Circuit continued oral arguments via telephone and provided access to the general public via an audio-only YouTube channel.
The First Circuit has recognized that “[a]ll forms of broadcasting are expressly proscribed in federal criminal cases.” In re Sony BMG Music Entertainment, 564 F.3d 1, 4 (1st Cir. 2009); see also Fed. R. Crim. P. 53 (“[T]he court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”).
In a case in which the First Circuit exercised its mandamus authority to prohibit live webcasting of a civil proceeding, the court interpreted Rule 83.3 of the Local Rules of the United States District Court for the District of Massachusetts to “forbid all broadcasting of federal district court proceedings in civil cases, save only for the enumerated exceptions. In re Sony BMG Music Entertainment, 564 F.3d 1, 9 (1st Cir. 2009) (emphasis in original). The court distinguished “the venerable right of members of the public to attend federal court proceedings” from “an imagined entitlement to view court proceedings remotely on a computer screen” and concluded that the controlling court rule “properly interpreted, closes federal courtrooms in Massachusetts to webcasting and other forms of broadcasting (whether over the air or via the Internet) . . . .” Id. In a concurrence, one judge agreed that the district court’s local rule required the outcome the majority had reached, but found that “there are no sound policy reasons to prohibit the webcasting authorized by the district court” and questioned the “continued relevance and vitality” of that Rule. Id. at 11 (Lipez, J., concurring).
The local rules of the relevant United States district court where broadcasting, photographing, or recording is proposed should be consulted, as they vary and may be amended.
The First Circuit has adopted a “Policy Regarding Electronic Devices” (Aug. 1, 2012), which prohibits the general public from bringing electronic devices into any United States courthouse in the District of Massachusetts, which is where the First Circuit hears most arguments. Attorneys who present valid identification are permitted to bring laptop computers and cell phones into the courthouse for business use. Laptop computers with silent keyboards may be used in the courtroom with the prior permission of the presiding judge. Attorneys may not record court proceedings.
The First Amendment right of access only protects physical access, not cameras or other recording equipment. See Westmoreland v. CBS, Inc., 752 F.2d 16 (2d Cir. l984). Furthermore, the Second Circuit has held that the denial of recording devices in the courtroom is reasonable and does not violate the First Amendment. United States v. Yonkers Bd. of Educ., 747 F.2d 111 (2d Cir. 1984) (affirming lower court’s denial of newspaper reporter’s motion to allow a tape recorder in courtroom during a civil trial).
The Supreme Court ruled in 1978 that “there is no constitutional right to have [live witness] testimony recorded and broadcast . . . . Nor does the Sixth Amendment require that the trial—or any part of it—be broadcast live or on tape to the public.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 610 (1978). But in Chandler v. Florida, 449 U.S. 560, 583 (1981), the Court confirmed that “the Constitution does not prohibit a state from experimenting with” cameras in the courtroom, and all states have done so to one extent or another. Jurisdictions vary widely, and the issue is governed by state law rather than a constitutional access right.
In federal criminal trials, Federal Rule of Criminal Procedure 53 provides that generally “the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.”
Although the Third Circuit has not considered the videotaping of a civil trial, it has held that courts may prohibit cameras from proceedings which are presumptively accessible to the public. See Whiteland Woods, L.P. v. Twp. of W. Whiteland,193 F.3d 177, 184 (3d Cir. 1999). The Third Circuit found that the media’s ability to “take notes, use audio recording devices, or even employ stenographic recording” served as sufficient replacements to videotaping a live proceeding. Id. at 183.
Local rules within the Third Circuit generally prohibit videotaping or photographing within the courtroom and/or courthouses, subject to certain exceptions. See, e.g., Local R. 83.1(H) (W.D. Pa.) (banning all videotaping or photography in “any hearing room, corridor, or stairway leading thereto” on any floor occupied by the court or at any other place designated by the court for holding court or judicial proceedings, with the exception of designated press rooms); Local R. 83.1(M.D. Pa.) (banning all videotaping or photography within a courtroom); Local R. 83.3 (E.D. Pa.) (banning all videotaping or photography within a courtroom (which includes hallways outside courtrooms and the ground floor elevator bay); Local R. 83.2 (D. Del.) (banning all videotaping or photography in “connection with any judicial proceeding within” the courthouse, with certain exceptions); Local Civ. R. 401.1 (D.N.J.) (banning all videotaping or photography in connection with any judicial proceeding “in the courtroom or its environs” (defined to include entrances and exits from the building), with certain exceptions).
Circumstances where cameras are permitted
Each district court has certain exceptions for cameras, e.g., for ceremonial proceedings, moot court proceedings, and bar association activities, etc.
Limitations on use of footage
The Third Circuit has held that the common law right to inspect judicial records extends a right to copy and broadcast video introduced at trial, except that which the court determines would be “impermissibly injurious to third parties.” United States v. Criden, 648 F.2d 814, 829 (3d Cir. 1981) (finding that district court’s order on remand did not comply with appellate court’s previous instructions to disclose recordings admitted into evidence during criminal trial with narrow exclusions for references that would “inflict unnecessary and intensified pain on third parties”).
Except as otherwise provided by statute or rule, the Federal Rules of Criminal Procedure expressly prohibit “the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” Fed. R. Crim. P. 53. At least one district court in the Fourth Circuit has held that this restriction does not violate the public’s First Amendment right of access to judicial proceedings. See United States v. Moussaoui, 205 F.R.D. 183, 185 (E.D. Va. 2002).
The Fourth Circuit’s Electronic Device Policy prohibits photography and audio/visual recording devices in the courthouse absent the Fourth Circuit’s express authorization. Public Internet or broadband access is not available anywhere in the courthouse or annex except the Fourth Circuit law library. See http://www.ca4.uscourts.gov/oral-argument/visiting-the-court/electronic-device-policy.
While the First Amendment guarantees the press a right of access to attend and observe criminal trials, the Fifth Circuit has held that this does not include a right to televise, record, or otherwise broadcast them. United States v. Edwards, 785 F.2d 1293, 1294 (5th Cir. 1997). Indeed, the federal rules prohibit the taking of photographs and radio broadcasting from the courtroom during a criminal trial. Fed. R Crim. P. 53. But television coverage of a trial does not necessarily violate a defendant’s right to due process. Edwards, 785 F.2d at 1296.
Whether television broadcasting in proceedings other than criminal proceedings will depend on the localrules of the court. For example, in the Eastern District of Louisiana, television broadcasting of federal trials is prohibited by local rule. Id. at 1294. With regard to executions, the Fifth Circuit has held that there is no constitutional right to televise an execution. Garrett v. Estelle, 556 F.2d 1274, 1277 (5th Cir. 1977).
How the Fifth Circuit treats activities such as webcasting, liveblogging, or tweeting is not yet clear as the Fifth Circuit has not given any direction to reporters. But one reporter’s personal experience in the Northern District of Texas is recounted in a New York Times article. Mike Isaac, A Trial and a Twitterstorm: On Live-Tweeting From a Federal Courthouse, N.Y. Times (Jan. 24, 2017), https://www.nytimes.com/2017/01/24/insider/a-trial-and-a-twitterstorm-on-live-tweeting-from-a-federal-courthouse.html.
The Sixth Circuit has rejected constitutional arguments that would have required courts to permit “broadcasting, telecasting, and photographing of judicial proceedings.” Conway v. United States, 852 F.2d 187, 188 (6th Cir. 1988); see also McKay v. Federspiel, 823 F.3d 862, 864, 868 n.2, 870 (6th Cir. 2016) (finding that plaintiff lacked standing to challenge state court’s Electronic Device Policy that barred devices that could record audio or video, among other things and noting that “both the Supreme Court and our circuit have declined to recognize a constitutional right to record courtroom proceedings”) (citations omitted).
Seventh Circuit Rule 55 (“Prohibition of Photographs and Broadcasts”) states:
The taking of photographs in, or radio or television broadcasting from the courtroom or any other place on the 27th floor or judges' chambers or corridors adjacent thereto on the 26th floor of the Federal Courthouse located at 219 South Dearborn Street, Chicago, Illinois, without permission of the court, is prohibited.
The Seventh Circuit recently added Operating Procedure 11 (“Video-Recording Policy”), which outlines the procedures for submitting requests for video-recording of oral argument. Requests must be submitted to the Clerk “not later than one week before oral argument”; the parties may comment or object; and the assigned panel has “sole discretion” whether to allow video-recording.
Northern District of Illinois Local Rule 83.1 governs limitations on use of court facilities, and provides:
No Cameras or Recorders. . . . [T]he taking of photographs, radio and television broadcasting or taping in the court environs during the progress of or in connection with judicial proceedings including proceedings before a United States magistrate judge, whether or not court is actually in session, is prohibited.
N.D. Ill. Local R. 83.1(c).
Southern District of Illinois Local Rule 83.5 provides that “[u]nless otherwise authorized by Order of this Court, the taking of photographs, sound recordings (except by the official court reporters in the performance of their duties), and broadcasting by radio, television, or other means, in connection with any judicial proceeding on or from the same floor on which a courtroom is located is prohibited.” Northern District of Indiana Local Rule 83-3(a) likewise prohibits taking photographs, making sound recordings, and broadcasting (by “radio, television, or any other means”), “anywhere on a floor where a courtroom, jury assembly room, grand-jury room, or clerk’s office is located when they are done in connection with a judicial proceeding. . . .” See also S.D. Ind. Local Rule 83-3(a); E.D. Wis. Gen. Local R. 83(a).
Central District of Illinois Local Civil Rule 83.7 provides that “no electronic devices will be permitted into the courthouse” subject to certain limited exceptions; “Electronic Devices” is broadly defined as including cameras, video recorders, audio recorders, cellular or digital phones, computers, and all similar “forms and methods of recording, transmitting, or communicating.” See also N.D. Ind. Local Rule 83-3(c)(1), (3) (“[o]rdinarily, no one may have a cell phone or personal digital assistant (‘PDA’) in the courthouse,” and “[n]o one may use a cell phone or PDA in the courthouse for an improper purpose, including without limitation taking pictures or videos”; judges may confiscate devices or fine users if device makes “an audible noise in the judge’s courtroom while court is in session”); N.D. Ill. General Order 09-015 (Use of Text-Based Technology to Receive and Send Text Messages on Handheld Devices in Courtrooms), https://www.ilnd.uscourts.gov/_assets/_documents/_forms/_media/GO09-015.pdf (“any Judge of the Court may, in his or her discretion, permit the use of text-based technology to receive and send text messages on handheld devices by persons in the public area of the Courtroom during Court proceedings, so long as such use of text-based technology does not include the use of any photography, broadcasting, radio, telephone or other audio transmission, or any audio or visual recording or transmission in violation of Local Rule 83.1(c), and does not emit sounds or otherwise disturb or distract from Court proceedings”).
Based on Federal Rule of Criminal Procedure 53 and a local district court rule barring cameras, the Seventh Circuit held a criminal defendant was properly denied permission to record and broadcast his trial on charges of failing to register for the draft. United States v. Kerley, 753 F.2d 617 (7th Cir. 1985). “All we have in the case before us is a limitation on the manner of news coverage; the media can do everything but televise the trial. The limitation can withstand constitutional scrutiny so long as it is reasonable and neutral, as with time, place, and manner restrictions generally.” Id. at 620-21. See also United States v. Torres, 602 F. Supp. 1458 (N.D. Ill. 1985) (networks allowed to copy tapes after they have been introduced into evidence and at convenient court recesses, but local court rule barring cameras, along with Sixth Amendment rights of defendants, precluded installation of wires in the courtroom in order to record videotapes simultaneously with their introduction into evidence).
“[T]he district court may, by rule, exclude photographing and broadcasting from those areas of the courthouse which would lead to disruption or distraction of judicial proceedings. . . .” Dorfman v. Meiszner, 430 F.2d 558, 561 (7th Cir. 1970). However, a court rule barring all photographs in the courthouse “environs” was overbroad because it included areas, such as the ground floor plaza and sidewalks, where “no foreseeable noise or commotion” could disturb the court's own proceedings. Id. at 562. Compare Sefick v. Gardner, 164 F.3d 370, 372 (7th Cir. 1998) (“the lobby of the courthouse is not a traditional public forum or a designated public forum, not a place open to the public for the presentation of views”).
Subsequently, the Northern District of Illinois enacted rules establishing a “designated media area” in the Chicago federal courthouse lobby for interviews and photography. See N.D. Ill. General Order 07-001 (Guidelines Regarding Use of the Everett McKinley Dirksen U.S. Courthouse Lobby by Media Personnel) (amended 5/15/13 and August 5, 2016), https://www.ilnd.uscourts.gov/_assets/_documents/_forms/_media/GenOrder07-001.pdf. See also C.D. Ill. Local Civil R. 83.7(A) (“[n]ews media representatives wishing to conduct interviews in relation to a court case may contact the presiding judge to seek permission to bring electronic equipment into the building for that purpose. If permission is granted, the judge will designate a specific area of the courthouse where such electronic equipment may be stored and used”).
Some Local Rules also codify the judges’ authority to issue special decorum orders in high-profile cases. See, e.g., S.D. Ill. Local R. 83.6(c), (d) (“In a widely publicized or sensational case, the Court, on motion of either party or on its own motion, may issue a special order governing such matters as extrajudicial statements by parties and witnesses which might interfere with the rights of the accused to a fair trial by an impartial jury, the seating and conduct in the courtroom of spectators and news media representatives, the management and sequestration of jurors and witnesses, and any other matters which the Court may deem appropriate for inclusion in such an order”); N.D. Ind. Local Crim. R. 53-1(a).
In the Northern District of Illinois, the district court and/or individual district judges will frequently issue additional guidelines for coverage by the news media in high-profile cases, including restrictions on the use of electronic devices in the courtroom. See, e.g., Guidelines for Proceedings in United States v. Hastert (June 8, 2015) (https://www.ilnd.uscourts.gov/_assets/_news/Guidelines%20in%20USA%20v.%20Hastert.pdf); Guidelines for the Media Covering United States v. Warner & Ryan (Sept. 20, 2005) (http://www.ilnd.uscourts.gov/_assets/_news/press/pr092005.htm).
The Seventh Circuit has discussed the circumstances in which audio tapes introduced as evidence may be released for copying by the media.
In an early decision, the Court found the district court’s refusal to release an audio tape in the midst of a criminal trial was not an abuse of discretion, but stated that its decision did not preclude the news media from seeking post-trial access to the tape. United States v. Edwards, 672 F.2d 1289, 1295 & n. 13 (7th Cir. 1982). Edwards noted that typically, a jury admonition to avoid news media reports is sufficient to avoid undue prejudice from publicity given to admitted evidence; however, “where an extraordinary level of publicity has made exceptionally difficult the selection of a jury and has created a circus atmosphere around the trial . . . , or where the administrative and mechanical difficulties attending inspection and copying would disrupt the progress of the proceeding . . ., denial of access may be warranted. We can state no hard-and-fast rule.” Id. at 1295-96.
United States v. Guzzino, 766 F.2d 302 (7th Cir. 1985) held it was an abuse of discretion in violation of the common law right of access for the district judge to deny CBS access to criminal trial audio tapes solely on the ground that the poor audio quality thereof could result in inaccurate and misleading news coverage. See also United States v. Shannon, 540 F. Supp. 769 (N.D. Ill. 1982) (television network has right to inspect and copy tapes played in open court during sentencing hearing; no demonstration that access would prejudice fair trial rights of either defendants or un-indicted third parties).
The Eighth Circuit has recognized that public broadcasting of criminal court hearings may be limited by the defendant’s Fourteenth Amendment due process rights. See Zaehringer v. Brewer, 635 F.2d 734 (8th Cir. 1980).
The Eighth Circuit also posts audio recordings of oral arguments on its website, but does not appear to publish any rules regarding the recording or live-streaming of oral arguments.
The Alabama Rules for Using Videotape Equipment to Record Court Proceedings set out guidelines on how to identify tapes, the costs for preparation, the judge’s trial log, exhibits, and depositions. Ala. R. U. V. E. 3. These rules apply in any trial or other proceeding where videotape equipment is used and take precedent over conflicting statutes and conflicting Alabama rules of procedure. Ala. R. U. V. E 2.
Under Rule 9.4 of the Alabama Rules of Criminal Procedure, the taking of television pictures or other photographs in or of the courtroom during the progress of judicial proceedings, or the radio broadcasting of judicial proceedings, may be permitted as provided in Canon 3(A)(7) and (7B) of the Canons of Judicial Ethics, or as otherwise may be permitted by law or other rule of court. Ala. R. Crim. P. 9.4.
The Alabama Canons of Judicial Ethics require the Supreme Court of Alabama to authorize a plan for the courtroom to ensure the dignity of court proceedings. Ala. Canons Jud. Ethics 3.A (7A) (2019). It also requires the court to obtain written consent from the accused and the prosecutor in a criminal proceeding and all litigants in a civil proceeding before allowing broadcasting by television or radio, recording or taking of photographs. Id. Similarly, Cannon (7B) requires appellate courts to have an authorized plan for the courtroom and obtain written consent from attorneys and parties involved in the hearing or trial. Id. at 3.A (7B).
Circumstances where cameras are permitted
Under the Alabama Canons of Judicial Ethics, a trial judge may authorize the use of cameras in a courtroom during a trial or other judicial hearing. Ala. Canons Jud. Ethics 3.A (7A) (2019). An appellate court may also authorize the use of cameras during a judicial hearing. Id. at 3.A (7B).
Limitations on use of footage
The Alabama Canons of Judicial Ethics requires the trial and appellate judge to stop using cameras “at any time that a witness who is testifying, the parent or guardian of any testifying witness who is a minor, or a juror, party or attorney expressly objects . . . .” Ala. Canons Jud. Ethics 3.A (7A) (c) (2019); see also id. at 3.A (7B) (b). The Order Adopting Courtroom Media Plan states that “no broadcasting, recording or photographing should detract from the dignity of the court proceedings.” Id. at app. 2. The Order also states that no more than four still photographers and two television cameras are permitted in the courtroom, but that all photographers and television stations are allowed to participate by pooling. Id. at 6.
Still cameras are permitted in the courtroom, but no more than four still photographers are permitted at one time. Ala. Canons Jud. Ethics app. 6 (2009). Photographers using still cameras “may sit anywhere in the courtroom designated for use by the public . . . but the Marshal, upon request of a party, attorney, witness or judge, may require them to take photographs only while standing behind the back row of seats.” Id. at 11. However, still cameras that produce distracting noise cannot be used. Id. at 10.
Live-blogging and Tweeting
Although there does not appear to be any Alabama case law specifically on point, members of the press engaged in both live-blogging and live-tweeting during the federal corruption trial of former Birmingham Mayor Larry Langford. See John Archibald’s play-by-play of the Larry Langford sentencing, Birmingham News, http://blog.al.com/archiblog/2010/03/john_archibalds_play-by-play_o.html.
All of Alaska is a single federal judicial district. Though there are signs of receptivity to discussions about greater access, the local rules still presumptively prohibit use of photography and recording devices in federal courthouses in the District of Alaska. See D. Alaska Local Civil Rule 83.3: “Photographs, Video or Audio Recorders, Broadcasts Unless otherwise ordered by the court, the taking of photographs and operation of video or audio recorders in the courtroom or its environs and/or radio or television broadcasting from the courtroom or its environs during the progress of, or in connection with judicial proceedings, whether or not court is actually in session, is prohibited.” Administrative rules of the Alaska Court System don’t control what is or is not permissible in federal court proceedings that occur in Alaska; conversely, the federal government doesn’t decide how the Alaska Court System governs electronic coverage of state court proceedings. Cameras are generally permitted in state court proceedings, whereas they are generally prohibited in federal proceedings. Federal rules barring camera coverage are written in a way that prohibits use portions of cameras in specific portions of federal buildings used by the federal courts whether the court is in session or not.
With respect to the Alaska Court System, the use of cameras and recording devices in state courts is governed by Alaska Administrative Rule 50. There has occasionally been some confusion about how Admin. R. 50 affects access to court proceedings by reporters who are not using cameras or audio recording devices. Admin. R. 50 was revised in 2019. It was previously entitled “Media Coverage of Court Proceedings,” and based on this title, occasionally journalists and even a judge or two read this to mean that any representatives of the media who want to cover court proceedings must get permission from the court to do so. This is incorrect. Journalists have the same right as any member of the public to attend court proceedings (and in fact are at times allowed to remain, as surrogates for the public, in a proceeding that is otherwise closed to some or all others). This presumptive constitutional right of access to judicial proceedings—with rare exceptions—does not depend on getting approval from a judge or court administrator, or consent of the parties, in order to attend and report on what goes on in our public courtrooms. It is only when journalists seek to use cameras or recording devices, or sketch artists—something the rest of the public cannot do, either, without getting approval—that they must comply with Rule 50. And if use of cameras or recording devices is not permitted in some particular case or situation, that does not mean that the journalist is not free to attend and report on the proceedings.
To get rid of and avoid this kind of confusion, the author has encouraged courts to stop using “Media Coverage” or similar phrases to describe their policies for use of cameras and other recording devices in courtrooms. In comments on the proposed revisions to Admin. R. 50 the author observed that this title “has caused unnecessary confusion, and improperly suggests that permission is necessary before the media can enter and remain in a courtroom to cover judicial proceedings, when in fact that fundamental constitutional right that does not require advance governmental approval.” The revised, current Administrative Rule is now called: “Use of Cameras and Electronic Devices in Court Facilities.” (Similar comments filed by the author with respect to proposed revisions to the local rules of the federal district court for the District of Alaska led to that court dropping the word “prohibited” from the title of the local rule governing recording, even though the presumptive prohibition against photo and audio recording remains, as noted above.)
Court proceedings in Alaska are presumed to be open to the public unless otherwise ordered by the court or provided by statute or court rule. Admin. R. 50(a)(1). However, no cameras or electronic devices may be used in the courtroom to film, photograph, record, transmit, stream, or broadcast sounds or images during court proceedings without prior approval of the judicial officer presiding over the proceedings or the clerk of the appellate courts. For the purpose of this rule, “cameras” and “electronic devices” are broadly defined. “Cameras” include but are not limited to film cameras, digital cameras, and video cameras. “Electronic devices” include but are not limited to cellular phones, laptop computers, and electronic tablets. The term “sketched” is broadly defined and includes drawings, portraits, and depictions whether done on paper, electronic device, or other medium. Any provision of Rule 50 addressing photographing includes sketching. Admin. R. 50(a)(2).
Permission to use cameras or electronic devices may be requested by completing the court system’s Application for Photographing, Filming, Recording, or Streaming a Court Proceeding. The application must be submitted sufficiently in advance so it can be reviewed and decided before the beginning of the proceedings and not cause delay. Admin. R. 50(b)(1). The Court System’s Administrative Bulletin 45, which implements Admin. R. 50 and is discussed in more detail below, states that “In general, the application should be submitted two business days prior to the proceeding.” While that may be a desirable goal (not specified in Rule 50), often the media will only learn of proceedings they wish to cover on short notice, such as arraignments or bail hearings for someone accused of a crime, or a hearing on a temporary injunction. It can be useful to learn the practices of any given judge or courthouse that you may be dealing with—for example, will they accept a request that is faxed or emailed to them? And pay attention to what you ask for, so that you don’t neglect to make a request broad enough to cover all that you want.
In both trial and appellate proceedings, any restrictions on courtroom coverage with cameras and electronic devices must be stated on the record or in writing, narrowly drawn employing the least restrictive means, and reasonably related to ensuring (A) decorum and preventing distractions, (B) the fair administration of justice in the pending case and future proceedings; and (C) protection of the reasonable privacy interests of a minor or any other person. Admin. R. 50(b)(2). The use of cameras and electronic devices outside the courtroom in a court facility is also subject at all times to the authority of the presiding judge, area court administrator, clerk of the appellate courts, judicial officer, or clerk of court to ensure decorum and prevent distractions, and to ensure the fair administration of justice, protection of the reasonable privacy interests of a minor or any other person, and the security of the court and all court users. Admin. R. 50(c). Use of cameras or electronic devices for coverage in the courtrooms may be terminated “if warranted under the circumstances.” Id. This vague and general language was added in 2019 and has not been tested or interpreted.
No minor (except on being prosecuted as an adult in a criminal case), no juror, and no victim of a sexual offense or a party in a sexual assault, stalking or domestic violence protective order proceeding may be photographed, filmed, videotaped, sketched, or recorded, nor may the image or voice of any of these individuals be broadcast, streamed, or posted on the internet, except that these restrictions don’t apply to a victim of a sexual offense or party to a protective order proceeding when that victim or party consents and the court approves, or to a discharged juror who consents to such coverage. Admin. R. 50(a)(3). Bench conferences, party or counsel notes, and confidential communications between counsel and client, between clients, or between counsel may not be filmed, videotaped, recorded, broadcast, streamed, or posted on the internet. Admin. R. 50(b)(3, 4).
Use of cameras or electronic devices at supreme court or court of appeals oral arguments are subject to the provisions governing their use in trial courts, plus any restrictions specifically imposed by the court concerned. These impose other restrictions, but the rules for appellate proceedings specifically require that in domestic violence, child custody and visitation, paternity, or other similar family proceedings, including child in need of aid cases, in proceedings involving involuntary commitments or the involuntary administration of medications, in criminal cases involving a sexual offense, or in other cases where confidentiality is necessary, any cameras and electronic devices must be positioned to avoid capturing images of the parties in civil cases, victims in criminal cases, or minors unless the minor is being prosecuted as an adult in a criminal case. Admin. R. 50(f)(2)(B).
Any person or organization whose request to cover court proceedings with cameras or electronic devices is denied or restricted can seek review of the unfavorable action. The process for doing this depends on whether it involves trial court or appellate court proceedings and facilities. In the trial courts, the person or organization can ask in writing that the court reconsider its ruling. This request can be made in the form of a letter to the trial judge, and can made through an attorney, but also, despite the statute requiring corporations to appear in court only through attorneys, it can be made by an officer or employee of an organization. The reconsideration request must state the reasons why use of a camera or an electronic device should be allowed and must be served on all parties to the case. If the reconsideration request is denied, the person or organization may petition for review under the Appellate Rules, but in this situation an organization seeking review can proceed only through an attorney. Admin. R. 50(e). If the request in the first place is for reconsideration of a restriction or appeal imposed in connection with Supreme Court or Court of Appeals proceedings, the process is basically the same, except that the letter or other filing requesting reconsideration and stating the reasons why use of a camera or electronic device should be allowed is made to the clerk of the appellate courts. It can be made through an attorney, or directly by the person, or by an officer or employee of an organization, seeking such use, despite the statute requiring corporations to appear in court only through attorneys. Admin. R. 50(f)(4).
The Alaska Court System has published an administrative bulletin for purposes of implementing the procedures and standards of Administrative Rule 50 and deals more specifically with “nuts and bolts” questions such as the number and placement of cameras, pooling, sound and light criteria, and other logistical details. (See Administrative Bulletin 45, which is set out in full in the Administrative Rules following Admin. R. 50; a separate Administrative Bulletin governs film industry requests.) Bulletin 45 was amended for the first time in decades in conjunction with adoption of revisions to Administrative Rule 50 in 2019. While it remains substantially the same, the Bulletin was modernized to eliminate references to things like use of 16mm film and flashcubes and add references to streaming and internet postings. It increased the number of television cameras, still cameras, and audio systems for broadcast purposes that are presumptively allowed in a courtroom or adjacent areas in a court proceeding or during a recess (§1–3), but makes pooling arrangements necessitated by limits on allowable equipment and personnel “the sole responsibility of the applicants without resort to the court or court personnel to mediate any dispute.” (§5). With respect to issues relating to decorum and distraction, the Bulletin provides that cameras and electronic devices that produce distracting sound or light, and artificial lighting devices, may not be used in a courtroom (§6), television, audio equipment, and tripod-mounted still cameras must not be placed in or removed from the courtroom except prior to commencement or after adjournment of proceedings each day, or during a recess (§8), and an equipment operator's movements in the courtroom must be unobtrusive—for example, a photographer should not assume body positions which would be inappropriate for other spectators, such as lying on the floor to get a better camera angle. Id. Persons using cameras and electronic devices are expected to present a neat appearance in keeping with the dignity of the proceedings and be sufficiently familiar with court proceedings to conduct themselves so as not to interfere with the dignity of the proceedings, or to distract counsel or the court. (§11). Persons using cameras or electronic devices must certify in their application to do this that they have read Administrative Rule 50 and Administrative Bulletin 45.
One potentially problematic provision in the new Administrative Bulletin 45 is the requirement that “A person or organization who wants to use a camera or electronic device at a trial court proceeding must submit an application to the court through the area court administrator on a form provided by the area court administrator's office. (§13(a)). The author believes this provision is unnecessary, confusing, and inconsistent with longstanding practice prior approval is routinely sought from the judicial officer presiding over the proceeding in question. As a practical matter, an application for camera coverage made through the area court administrator’s office would simply be forwarded to the judge assigned to the matter, or held for confirmation of that judge’s position, thus contributing to needless delay. While it might be inappropriate to advise journalists to ignore this provision, and this guide is not intended as legal advice in any event, it is likely that no one would get in trouble and everyone would be better served if journalists and others continue to submit applications to use cameras and electronic devices directly to the judge presiding in the case. The potential problem has been obviated to a large extent by the fact that the Presiding Judge of the largest (Third) judicial district in the state has issued an administrative order (3AO-19-03, discussed in more detail below in this section) that expressly allows an application for use of cameras or electronic devices to be made directly to the judge presiding over the proceeding to be covered, or to the area court administrator or presiding judge.
A party may file a motion objecting to a person’s use of a camera or electronic device if it is distracting, effects the fair administration of justice, infringes on their reasonable privacy interests, or creates a security risk. The judicial officer, upon a party’s or the judicial officer’s own motion, may order coverage to cease until a distraction has been eliminated, limit the coverage, or terminate coverage, if warranted under the circumstances of the case. (§14). Presumably any such order would be subject to the standards and procedures set out in Admin. R. 50(b) requiring, for example, a statement of restrictions that is written or on the record, reasonably related to the specified allowable reasons, narrowly drawn and employing the lease restrictive means of accomplishing the court’s legitimate goals. The judge presiding over a proceeding may alter the provisions of Administrative Bulletin for that particular proceeding upon a showing of good cause. (§15).
Admin. R. 50 applies at all times throughout state court facilities and is not limited to courtrooms or to times when court is in session, though it does provide that the presiding judge for each judicial district may establish by order procedures or restrictions consistent with the those in the text of Rule 50 regarding the use of cameras and electronic devices in court facilities within the district. Admin. R. 50(d). Current Presiding Judges’ orders, if any, on the use of cameras or electronic devices in court facilities are available on the court’s website under court rules at: http://www.courts.alaska.gov/jord/index.htm#trial. Copies may also be obtained from the office of the court rules attorney at 820 West 4th Avenue, Anchorage, AK, 99501, (907) 264-8231. Administrative Order 3AO-19-03, issued by Third Judicial District Presiding Judge William Morse on April 18, 2019, courts serving most of the state’s population, including Anchorage. It includes a few variations on the provisions set out in Administrative Rule 50 and Administrative Bulletin 45. Among these are that media coverage can take place without application for prior approval (only) in the main lobby of a courthouse, except that cameras and electronic recording devices can’t be used in security screening areas of a courthouse facility, and the equipment, personnel or activities in a security screening area can’t be recorded. Aside from lobby coverage, use of cameras and electronic devices in all other locations in Third Judicial District courthouses requires an application to the Presiding Judge, Area Court Administrator, or the judge presiding over the proceeding to be covered. Prior approval for media coverage in the area occupied by the appellate courts on the fourth and fifth floors of the Boney Courthouse in Anchorage must be obtained through the Clerk of the Appellate Courts. There are no restrictions on media coverage outside and adjacent to courthouses in the Third Judicial District, except that placement of equipment can’t obstruct public egress or entrance to a court facility. As of December 2019, it does not appear that Administrator Orders regarding use of cameras and electronic devices have been issued by the presiding judges of the other (First, Second, or Fourth) Alaska Judicial Districts. There is a “Local Administrative Order” (3KN-AO-19-1, issued September 30, 2109) regarding Use of Cameras and Electronic Devices at the Kenai Courthouse, issued by a Kenai Superior Court Judge (not the presiding judge of the judicial district) that says it “supplements the local procedures for non-media use of electronic devices.” It appears to primarily, if not exclusively, address wedding photography. It states that devices may be used in the main lobby areas without prior approval for weddings, but “for other purposes prior approval must be obtained. It also says “No court personnel may be photographed or recorded without their consent, unless prior approval has been obtained from the Presiding Judge, Deputy Presiding Judge, or Area Court Administrator.” These two provisions are potentially problematic. Admin. Rule 50 appears to apply to all, not just to “media,” and the Presiding Judge’s Administrative Order 3AO-19-03 expressly allows media coverage in courthouse lobbies without prior approval. Rule 50 also contains no prohibition against or restrictions on photographing or recording court personnel. And, it only provides for establishment of local procedures or restrictions regarding use of cameras and court facilities by order of the presiding judge for the judicial district. Should a problem occur relating to these provisions, those points could be made, but hopefully no issues should arise because of this local order that are of concern to the media, because the “Local Order” expressly states it applies to “non-media use.”
The use of cameras and other technology in the courtroom is governed primarily by Arizona Supreme Court Rules 122 and 122.1.
Rule 122 relates to camera coverage, and explains that an appropriately submitted camera request should be granted unless the court makes specific, on-the-record findings that there is a likelihood of harm arising from one or more of the following factors, and that the harm outweighs the benefit of coverage to the public:
A. The impact of coverage upon the right of any party to a fair hearing or trial;
B. The impact of coverage upon the right of privacy of any party, victim, or witness;
C. The impact of coverage upon the safety and well-being of any party, victim, witness, or juror;
D. The likelihood that coverage would distract participants or that coverage would disrupt or detract from the dignity of a proceeding;
E. The adequacy of the physical facilities of the court;
F. The timeliness of the request;
G. Whether the person making the request is engaged in the dissemination of news to a broad community; and
H. Any other factor affecting the administration of justice.
Ariz. R. Supreme Ct. 122(d).
With regard to personal recording devices, Rule 122(h) provides that a person may use such a device, but must give notice to the court. A person is not required to submit a request to use a personal recording device. Recording devices, including cameras, may not be used while the judge is off the bench. Ariz. R. Supreme Ct. 122(k).
Rule 122.1 provides for the use of personal electronic devices in a courthouse and explains the limitations on their use.
Arkansas Supreme Court Administrative Order No. 6 governs the use of cameras and other technology in the courtroom. The judge has discretion to authorize broadcasting, recording, or photographing in the courtroom and areas immediately adjacent to it during proceedings, recesses, and on other occasions. These restraints appear to be directed at the press. A party or his attorney may make a timely objection to preclude broadcasting, recording, or photographing of the proceedings. The Supreme Court of the United States has said that a state may provide for radio, television, and still photographic coverage of a criminal trial for public broadcast, even if the defendants object. Chandler v. Florida, 449 U.S. 560 (1981).
The Supreme Court of Arkansas has said that willful disobedience of an order not to use cameras could result in automatic reversal or retrial. See Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985); see also Ford v. State, 276 Ark. 98, 276 Ark. 98, 633 S.W.2d 3 (1982). In order to receive an automatic reversal on appeal, the moving party would have to show that she or he suffered prejudice resulting from the taping. Smith v. State, 314, Ark. 448, 863 S.W.2d 563, 566 (Ark. 1993).
Administrative Order No. 6 states that the following will not be subject to broadcasting, recording, or photographing: (1) juvenile matters in circuit court; (2) probate and domestic relations matters in circuit court; (3) drug court proceedings; (4) in camera proceedings, unless the court gives consent; (5) jurors, minors without parental or guardian consent, victims in cases involving sexual offenses, undercover police agents or informants. In addition to restraints on the press, the Order restrains individuals from using unauthorized electronic devices to broadcast, record, photograph, email, blog, tweet, text, or post. See Dimas-Martinez v. State, 2011 Ark. 515, 385 S.W.3d 238, 247-248 (2011).
According to Administrative Order No. 6, the decisions a court makes as to the details of how broadcasting, recording, and photographing will be done are final and not subject to appeal.
Under California Rule of Court 1.150, courts have the discretion to approve or deny a media request to photograph, videotape or record a proceeding. Unless the media can show good cause, it must request an order allowing recording at least five days in advance of a hearing. California Judicial Form MC-500 should be used to seek the order. The rule includes a list of 19 factors to be considered by a court in deciding whether to allow access. Knowingly violating this rule, including by recording any part of a court proceeding without authorization of the court, can subject a violator to sanctions or citation for contempt. People v. Brown, No. B248333, 2014 WL 3895561, *3 (Cal. Ct. App. 2014) (unpublished) (reversing sanctions award against a supervising attorney who requested that another attorney videotape testimony but did not know that the recording attorney would record without seeking permission from court).
The media has the right to access and copy audiovisual evidence that was entered into evidence during trial. See KNSD Channels 7/39 v. Superior Court, 63 Cal. App. 4th 1200, 1204-1205, 74 Cal. Rptr. 2d 595 (1998).
In People v. Dixon, 148 Cal. App. 4th 414, 440, 56 Cal. Rptr. 3d 33 (2007), the court of appeal held that the trial court failed to apply the proper standard in evaluating the media’s request to televise the proceedings and, specifically, in failing to give adequate consideration to the factors listed in Cal. Rules of Court, rule 1.150 when it granted the media’s request to televise or videotape the proceedings. The court held that although the public and the press might have a First Amendment right to attend the proceedings, the press did not have a constitutional right to have a camera in the courtroom. The error, however, was harmless because defendant could not show that the media’s intrusion affected the jury’s determination that he satisfied the criteria for recommitment.
If the media has been permitted to record proceedings, the court may not thereafter impose a blanket order that requires the media to obtain approval before the footage can be broadcast. That is, a judge may not normally “become the editor of a television station’s news broadcasts of a previously recorded judicial proceeding.” KFMB-TV Channel 8 v. Municipal Court, 221 Cal. App. 3d 1362, 1368, 271 Cal. Rptr. 109 (1990).
The Court of Appeal held that the requirement that photographers forego showing pictures of juvenile suspects in farmworker beatings was an unconstitutional prior restraint. S. Coast Newspapers, Inc. v. Superior Court, 85 Cal. App. 4th 866, 873, 102 Cal. Rptr. 2d 487 (2000). Although the Court of Appeal acknowledged that due process was a possible concern, the Court was “unconvinced on this record that there is a substantial probability that, absent the prior restraint, the witnesses’ in-court identifications of the defendants would be based on photographs seen in the newspapers rather than their observations of the perpetrators at the crime scene.” Id.
Because the court had the power to bar photography of a proceeding, it was not an unconstitutional prior restraint for the court to refuse to return a confiscated roll of film. Marin Independent Journal v. Municipal Court, 12 Cal. App. 4th 1712, 16 Cal. Rptr. 2d 550 (1993).
The California Supreme Court now webcasts all arguments live on its websites.
Liveblogging and tweeting from the courthouse will be governed by any applicable local rules regarding courtroom access and use of electronic devices in court. The media has liveblogged parts of at least one California Superior Court murder trial, that of Hans Reiser. See https://www.wired.com/2008/03/liveblog-hans-r/. If you are interested in liveblogging from a courthouse, it may help to contact the court for guidance or to obtain permission to use an electronic device in the courtroom.
The Colorado court system’s policy for “expanded media coverage,” which means any photography (including video) or audio recordings of proceedings, is set forth in Rule 3, Chapter 38 of the Colorado Supreme Court Rules (pdf). The rule describes the procedural requirements for requesting expanded media coverage access, including a standard request form, sets forth standards for a judge to authorize expanded coverage, and also describes restrictions on expanded media coverage.
Rule 3 only permits one video camera in a courtroom at a time, as well as one still photographer at a time, and prohibits the use of extra lighting, including flashes. Tripods are permitted but cannot be moved while court is in session. The media are solely responsible for making pooling arrangements.
Colorado courts have their own audio recording system, which the media may access, but media may also receive permission to record the audio of court sessions if the court’s system is not “technically suitable,” if the additional microphones and wires are unobtrusive, and if the equipment does not interfere with the proceedings.
Rule 3 also prohibits expanded media coverage of (1) pretrial hearings in criminal cases, except advisements and arraignments, (2) jury voir dire, (3) audio recording or close-up photography of bench conferences or communications between counsel and client, or co-counsel, (4) in camera hearings, or (5) close-up photography of jurors.
In reviewing a request for expanded media coverage, the judge must consider (1) whether there is a reasonable likelihood that the expanded media coverage would interfere with the rights of the parties to a fair trial, (2) whether there is a reasonable likelihood that expanded media coverage would “unduly detract from the solemnity, decorum and dignity of the court,” and (3) whether expended media coverage would “create adverse effects which would be greater than those caused by traditional media coverage.” Rule 3(a)(2).
The standard request form requires the member of the media seeking access to agree to comply with the court’s orders and all criteria set forth in Rule 3, which includes a statement that the media “may not appeal, or seek review by original proceeding, the granting or denial of expanded media coverage.” Rule 3(a)(6)(D).
Notwithstanding Rule 3, individual judges may fashion special rules for media coverage of individual cases, as needed.
The expanded media coverage policy does not address live blogging or the use of social media from court rooms. Whether those activities will be permitted depends on the individual policies of each judicial district (see, e.g., Order 11-01 Regarding the Use of Portable Electronic Devices in the Courts of the Fifth Judicial District) and, sometimes notwithstanding district-wide policies, each individual judge. Members of the media with questions about using electronic devices in court are encouraged to contact the public information officer for the Colorado Judicial Branch (rather than the individual presiding judge) in advance of any court proceeding.
The Colorado Supreme Court and Court of Appeals live stream their sessions.
See generally In re Hearings Concerning Canon 35 of the Canons of Judicial Ethics, 296 P.2d 465 (Colo. 1956) (discussing favorably and at length the issue of cameras and microphones in the courtroom, and rejecting common arguments against expanded media coverage; “I am . . . certain that the vast majority of those supporting continuance of Canon 35 [which prescribed a blanket exclusion from courts on photography and other recording equipment] have failed, neglected, or refused to expose themselves to the information, evidence, and demonstrations of progress which are available in this field. I am also satisfied that they are unfamiliar with the actual experiences and recommendations of those who have permitted supervised coverage by photographers, radio and television of various stages of court proceedings.”).
Connecticut’s state rules address “broadcasting, televising, recording or photographing by the media” of courtroom proceedings, organized by type of proceeding. See Conn. R. Super. Ct. § 1-10B (general); § 1-11A (arraignments); § 1-11B (civil proceedings); § 1-11C (criminal proceedings); § 70-9 (appellate proceedings).
There is a blanket prohibition on any electronic coverage of:
- Family relations matters;
- Juvenile matters; and
- Proceedings involving sexual assault or trade secrets.
In addition, no electronic coverage is allowed of any proceedings held without the jury (in jury trials); jury selection or jurors; any proceedings during recess; or any bench conferences.
As a threshold matter, someone who proposes to electronically cover a proceeding must be designated as “media” by the Office of the Chief Court Administrator. Conn. R. Super. Ct. § 1-10A. Approval may be obtained by contacting email@example.com or by calling (860) 757-2270.
Requests to cover proceedings electronically must go through a specific process depending on type of proceeding. In every case, the judicial decision on requests for coverage is final.
Arraignments. Coverage of arraignments must be authorized by the person presiding over the arraignment. Media desiring to cover an arraignment must first e-mail a request to a person designated by the Chief Court Administrator. At the time of writing, this was Alison.Chandler@jud.ct.gov, with cc to Rhonda.Hebert@jud.ct.gov. That request is sent to an administrative judge, who in turn informs counsel for the parties. The parties must have an opportunity to object on the record; if they do, the judge must issue a decision articulating the reasons for allowing or denying coverage. “To the extent practicable,” electronic coverage should not include close-ups of counsel’s documents; coverage of the defendant entering or exiting lock-up; any restraints on the defendant, those escorting the defendant; and anyone other than court personnel and those participating in the arraignment. Additional rules govern the mechanics of coverage and comportment of media in the courtroom.
Criminal proceedings. In addition to Conn. R. Super. Ct. § 1-11C, the Connecticut Judicial Branch maintains an FAQ-type document on its website. See Rules regarding the Electronic Coverage of Criminal Court Proceedings by the Media, January 1, 2012, available at https://www.jud.ct.gov/external/media/camera_rules_010112.pdf.
Requests to cover criminal proceedings must be submitted to the administrative judge of the judicial district where the proceeding will take place at least three days before it begins. The administrative judge will inform the presiding judge, who “shall allow such coverage except as otherwise permitted.” Objections to coverage may be filed by “any interested person” if “there is substantial reason to believe that such coverage will undermine the legal rights of a party or will significantly compromise the safety of a witness or other person or impact significant privacy concerns.” Once an objection is filed, the presiding judge must hold a hearing, after notice via the Judicial Branch website, at which “any person, including the media, whose rights are at issue” may participate. The burden is on the objector. The judge shall “consider all rights at issue” and “shall limit or preclude . . . coverage only if there exists a compelling reason to do so, there are no reasonable alternatives to such limitation or preclusion, and such limitation or preclusion is no broader than necessary to protect the compelling interest at issue.” Even if no objection is filed, the presiding judge may sua sponte decide to hold such a proceeding, using the same process and considerations. The judge must articulate the reasons for a decision, and the decision is final. Additional rules govern the mechanics of coverage and comportment of media in the courtroom.
Civil proceedings. The Connecticut Practice Book does not specify that a request to an administrative judge is required to electronically cover civil proceedings. Otherwise, the process for objections, notice and hearing mirrors that for criminal proceedings. Additional rules govern the mechanics of coverage and comportment of media in the courtroom.
Appellate proceedings. Per Conn. R. App. Ct. § 70-9, the appellate courts do not allow coverage of cases involving sexual assault, child protection issues, child custody issues, and terminations of parental rights. Otherwise, someone who wants to cover appellate proceedings electronically—or someone who objects to that coverage—must file a motion no later than a week before the start of the term in which the case will be heard. In doing so, the proponent must notify all counsel of record, victims of the offense, and minor children involved. The appellate court must provide an opportunity to respond in writing to “any media outlet expected to cover the proceeding” (in cases of an objection) or the parties, any minor children involved, and any victims of the offense (in cases of a request). The appellate panel may also act on its own motion.
In determining whether to preclude coverage, “the panel of jurists will apply the presumption that all judicial courtroom proceedings are subject to coverage by cameras and electronic media” and may only limit coverage for “good cause”; if there is no reasonable alternative; and the limitation is no broader than necessary. If the panel limits electronic coverage, it must provide a statement of the reasons for doing so.
The federal trial court flatly prohibits video- and photography during court sessions, as well as radio or television broadcasting. D. Conn. Local Civ. R. 83.11.
While the federal courts in D.C. are no stranger to high-profile judicial events, they have historically limited the use of cameras and other technology in the courtroom. In the 2007 proceedings against former White House adviser Scooter Libby, who stood trial on charges of obstruction of justice and perjury arising out of a criminal investigation into possible unauthorized disclosure of classified information regarding the identity of a CIA operative, Judge Reggie Walton issued a decorum order barring cameras, audio and video recording equipment, and providing that the court would not tolerate “any attempts to have this case tried in the media." United States v. Libby, 35 Media L. Rep. 1235 (D.D.C. 2007). While the Court offered live closed-circuit video transmission to remote locations within the courthouse, it barred retransmission of the video. See id. However, Judge Walton instructed the credentialed media viewing the closed-circuit broadcast to use laptops for "note taking purposes, live written reporting of the proceedings, or blogging only." Id.
District Court Local Civil Rule 83.1 and Local Criminal Rule 53.1.1 govern photography, tape recording, and broadcasting in the courthouse. The rule proscribes the taking of photographs, operation of tape recorders, and radio or television broadcasting from inside the courthouse during the progress of or in connection with judicial proceedings, including proceedings before a United States Magistrate Judge, whether or not court is actually in session. However, a judge may permit the broadcasting, televising, recording, or photographing of investiture, ceremonial, or naturalization proceedings and the videotaping or audio taping of educational programs with prior approval of the Chief Judge. The use of such equipment is permissible within a judge's chambers at the discretion of the judge. Finally, the contents of official tapes that are made as part of the record in a case will be treated in the same manner as official stenographic notes.
The D.C. Circuit provides audio recordings of live and archived oral arguments at https://www.cadc.uscourts.gov/internet/home.nsf/Content/Oral+Arguments. Outside photography, audio recording, and video recording are prohibited; only sketch artists are permitted pursuant to the policy at https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL%20-%20Rules%20Policies%20Procedures%20-%20Sketch%20Artist%20Policy.
The Delaware Supreme Court livestreams oral arguments on https://livestream.com/DelawareSupremeCourt. Past arguments can be viewed on the Supreme Court’s website, https://courts.delaware.gov/supreme/oralarguments/.
On April 4, 2004, the Delaware Supreme Court issued Directive 155, authorizing a six-month experimental period for expanded electronic media coverage of non-jury civil trials in the Court of Chancery and the Superior Court. In April 2004, the Supreme Court then expanded the Directive to make the experimental period continue indefinitely until further Directive. On August 19, 2015, that latter Directive was rescinded. Now, camera access is granted or rejected on a case-by-case basis. The Court of Chancery is working on rules of court to address cameras in the courtroom.
District of Columbia
The following policy guidelines apply at the federal courthouse in D.C. with respect to cameras and related technology:
- The use of any device that has the capability to photograph, record, or videotape is prohibited except in connection with ceremonial and educational functions of the courts (naturalization proceedings, investitures of new judges, memorial services, portrait presentation ceremonies, etc.). The use of such equipment is permissible within a judge’s chambers and courtroom at the discretion of the judge. Videotaping, recording, or photographing court events, ceremonies, and educational programs may be permitted with prior approval of the chief judge or court unit executive of the sponsoring court and under such conditions as he or she may prescribe. Acting at the direction of the chief judge of the sponsoring court, the special assistants to the chief judges are also authorized to approve these requests. The chief judge, court unit executive, or special assistant to the chief judge will notify the U.S. Marshal in writing in advance of the event that use of these devices is authorized.
- Notwithstanding the above, the Court of Appeals may decide whether to permit the taking of photographs and radio and television coverage of Court of Appeals proceedings, subject to any restrictions in statutes, national and local rules, and such guidelines as the Judicial Conference may adopt.
Moreover, D.C. federal district court Local Civil Rule 83.1 provides:
“The taking of photographs and operation of tape recorders inside the United States Courthouse and radio or television broadcasting from inside the courthouse during the progress of or in connection with judicial proceedings, including proceedings before a United States Magistrate Judge, whether or not court is actually in session, are prohibited. A judge may, however, permit (1) the use of electronic or photographic means for the presentation of evidence or the perpetuation of a record, (2) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings, and (3) the videotaping or audio taping of educational programs with prior approval of the Chief Judge and under such conditions as he or she may prescribe. The use of the above equipment is permissible within a judge's chambers at the discretion of the judge. Contents of official tapes that are made as part of the record in a case will be treated in the same manner as official stenographic notes.”
And D.C. federal district court Local Criminal Rule 53.1.1 provides:
“The taking of photographs and operation of tape recorders inside the United States Courthouse and radio or television broadcasting from inside the courthouse during the progress of or in connection with judicial proceedings, including proceedings before a United States Magistrate Judge, whether or not court is actually in session, are prohibited. A judge may, however, permit (1) the use of electronic or photographic means for the presentation of evidence or the perpetuation of a record, and (2) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings. Contents of official tapes that are made as part of the record in a case will be treated in the same manner as official stenographic notes.”
As for cell phones, visitors at the federal courthouse may keep their cell phones with them if they do not have cameras. Additionally, camera phones may be brought into the courthouse by members of the bar, jurors, credentialed members of the media, and Parole Commission Hearing Examiners. The policy is available at https://www.dcd.uscourts.gov/electronic-device-policy.
In the D.C. local courts, Rule 53(b) of the Superior Court Rules of Criminal Procedure provides:
(1) In General. The taking of photographs, or radio or television broadcasting, or except with the approval of the court the use of any mechanical recording device, shall not be permitted in any courtroom of this court during the progress of judicial proceedings, or in any of the anterooms adjacent thereto, in any of the cellblocks, in the lobby, or in the corridors of the courthouse.
(2) Exception. The taking of photographs in any office or other room of the courthouse shall be only with the knowledge and consent of the official or person in charge of such office or room and of the person or persons photographed.
Rule 203(b) of the Superior Court Rules of Civil Procedure and Superior Court Juvenile Proceedings Rule 53(b) contain similar limitations on photography and broadcasting.
Further, according to guidance on the local D.C. courts website, available at https://www.dccourts.gov/sites/default/files/COURT-BUILDING-REGULATIONS.pdf:
Photography, video-recording, and audio-recording are prohibited within the District of Columbia Courts. Prohibited photography, video-recording, and audio-recording includes cellular telephones and other electronic devices, such as personal assistant devices or palm notepads with built-in features enabling the device to take photographs, or make audio- or video- recordings.
All persons entering the courthouse with a camera or recording device will be asked to leave it with the Court Security Officer.
Florida Rule of Judicial Administration Rule 2.450 governs camera access to Florida courtrooms. In April 2009, the Florida Supreme Court commemorated the 30th Anniversary of the implementation of the rule providing broad access for cameras and other technology in the courtroom. See In re Post-Newsweek Stations Fla. Inc., 370 So. 2d 764 (Fla. 1979). Camera access is permitted in both the trial and appellate courts. Generally, the media covering the proceeding use a single pool video camera.
Oral arguments in the Florida Supreme Court and many district courts of appeal are streamed live and archived.
Rule 2.450 further states that Florida state courts are presumptively open to electronic media. See also In re Post-Newsweek Stations Fla. Inc., 370 So. 2d 764 (Fla. 1979). Camera issues are also addressed in many circuits by administrative order. E.g., Photographing, Recording or Broadcasting in Courthouse Facilities, Admin. Order No. S-2007-038 (Fla. 13th Cir. Ct. Mar. 28, 2007), http://www.fljud13.org/Portals/0/AO/DOCS/2007-038.pdf. Orders excluding electronic media access or coverage are subject to expedited appellate review. See Fla. R. Jud. Admin. 2.450(i) (citing Fla. R. App. P. 9.100(d)).
Where trial and appellate proceedings are open to the public, cameras are also permitted. Proceedings that are closed to the public, such as adoption proceedings, also are closed to the electronic media. Both the Florida Supreme Court and the First District Court of Appeal broadcast all or most of their oral arguments online. There is no rule or law, however, that requires this statewide.
Except by court order, there is no limitation on taking or use specific footage. However, courts have the authority to prohibit the filming or photographing of particular trial participants, such as witnesses or jurors, upon a finding that such coverage will have a substantial effect upon the particular individual which would be “qualitatively different” from the effect of traditional media coverage. In re Post-Newsweek Stations Fla. Inc., 370 So. 2d at 779; State v. Green, 395 So. 2d 532 (Fla. 1981). But cf. Sunbeam Television Corp. v. State, 723 So. 2d 275 (Fla. 3d DCA 1998) (finding on rehearing en banc that an interest in insulating jurors from undue influence in a high-profile case in which juror names and addresses were sealed could support a prohibition against videotaping jurors’ faces).
Courts also retain the authority to “(i) control the conduct of proceedings before the court; (ii) ensure decorum and prevent distractions, and (iii) ensure the fair administration of justice in the pending cause.” Fla. R. Jud. Admin. 2.450(a).
At least one Florida law purports to restrict the broadcasting of an identifiable photograph or voice of a child victim of certain sexual acts without the written consent of the victim. Fla. Stat. § 92.56(5) (2014). The constitutionality of this provision has not been challenged.
Still cameras are specifically included within Rule 2.450 and permitted in Florida courtrooms, as described in the rule.
The lone authority in Florida on live blogging and tweeting is an order from the First District Court of Appeal in Morris Publ’g Co. v. State, No. 1D10-226, 2010 WL 363318 (Fla. 1st DCA Jan. 20, 2010). The court held that the Florida Rules of Judicial Administration did not apply to the use of a laptop computer in a courtroom. Instead, the trial court’s inherent authority to control proceedings governs the use of laptops. If a court makes specific factual findings and concludes that use of a laptop or other device “cannot be accommodated without undue distraction or disruption” then the court can ban such conduct. Id. Live blogging continued in the criminal trial underlying this decision.
The Georgia Supreme Court has long made clear that camera and electronic access is an essential component of Georgia’s constitutional commitment to an open court system. See, e.g., Morris Communications, LLC v. Griffin, 279 Ga. 735 (2005) (reversing a trial court order that denied camera access to criminal trial and stating that “a trial court should bear in mind this State’s policy favoring open judicial proceedings”); Georgia Television Co. v. Napper, 258 Ga. 68 (1988) (trial court erred in denying camera access to a hearing based on the court’s belief that the hearing was not newsworthy and that access would inhibit the Socratic dialogue beneficial to the free exchange of ideas between court and counsel).
Uniform Superior Court Rule 22, which is repeated in the uniform rules of the state’s other classes of courts, generally permits camera and other electronic access upon timely request absent specific findings, after hearing, of countervailing likelihood of harm. See also O.C.G.A. §15-1-10.1. See generally McLaurin v. Ott, 327 Ga. App. 488 (2014) (although the decision whether to allow electronic and photographic coverage of a trial is within the discretion of the trial court, if a trial court denies such coverage, there must be a factual basis in the record that supports the denial) (reversing a denial of law student request to videotape criminal calendar proceedings). Cf. Moore v. State, 311 Ga. 506 (2021) (no on-the-record findings required if electronic and photographic coverage is allowed).
In 2018, the Georgia Supreme Court updated Rule 22 “to reflect developments over the last two decades in recording technology, in the news media, and, most significantly, in recording devices—namely, the smart phones and other mobile computers with recording capabilities that today are routinely carried and used by most people in this state.” The Court added a preamble, stating that, “Open courtrooms are in indispensable element of an effective and respected judicial system. It is the policy of Georgia’s courts to promote access to and understanding of court proceedings not only by the participants in them but also by the general public and by news media who report on the proceedings to the public.” The Court cautioned, however, that, “This must be done . . . while protecting the legal rights of the participants in the proceedings and ensuring appropriate security and decorum.” Uniform Superior Court Rule 22(A).
Under the updated rule, courtroom spectators, including news media, who seek to record a court proceeding must, as in the past, make a special request of the court for permission to do so, triggering notice requirements and a possible hearing. See Rule 22(F). See also Rule 22(G) (“A properly submitted request for recording should generally be approved . . . .”).
Whether to allow electronic devices to be used by spectators, including news media, in the courtroom for non-recording purposes is up to each trial judge. See Rule 22(C)(3). The rule permits but does not require a judge to “freely” allow such use “when he or she believes [it] would not be disruptive or distracting and is not otherwise contrary to the administration of justice.” The rule provides that when such is allowed, devices “must be silenced and may not be used to make or receive telephone calls or for other audible functions without express permission from the judge.”
During a criminal case involving Honolulu police officers engaging in sexual conduct with persons selling sexual services during sting operations, Hawaii News Now (“HNN”) submitted an application for extended coverage to retain the right to full and complete coverage of the criminal proceedings. State v. Nilsawit, 139 Hawai‘i 86, 88, 384 P.3d 862, 864 (2016). After a hearing regarding HNN’s application for extended coverage, the district court denied the application citing Rules of the Supreme Court of Hawai‘i (“RSCH”) Rule 5.1(f)(3) and (5), which outlines instances in which a presumption of good cause exists for not allowing extended coverage. Id. In doing so, the court prohibited HNN from televising or publishing the faces or likenesses of the officers involved unless their faces were blurred. Id. at 89, 384 P.3d at 865. HNN appealed the decision regarding denial of application for extended coverage. Id. The Hawai‘i Supreme Court determined that RSCH Rule 5.1 f(8) and (f)(9) “does not allow further appeal” by members of the media of the administrative judge’s ruling. Id. at 93, 384 P.3d at 869 (“HNN would be precluded from seeking leave to appeal pursuant to RSCH Rule 5.1(f)(9) as it is not a party and because, . . . there is no statutory authority that would have allowed HNN to appeal to the ICA from an interlocutory order issued by the district court.”). Id. The Hawai‘i Supreme Court further stated that “HNN and the media at large are not deprived of means to obtain redress, as they may apply for a writ of prohibition and/or mandamus in challenging a trial court’s order regarding extended coverage.” Id. at 94, 384 P.3d at 870.
Idaho Court Administrative Rule 45 governs cameras in trial courtrooms throughout Idaho, Rule 46a governs cameras in appellate proceedings held at the Idaho Supreme Court building in Boise, and Rule 46b governs cameras in appellate proceedings held outside of Boise.
Idaho court rules do not specify what proceedings may be photographed, leaving the decision largely to the presiding judge. The rules do identify which proceedings may not be photographed. Those include proceedings that are closed to the public, including grand jury proceedings, issuance of arrest and search warrant proceedings, adoptions, mental health proceedings, child protective proceedings, and termination of parent-child relations (I.C.A.R. 45(c)(3)), conferences between judges, attorneys and clients in the courtroom, notes on counsel table or exhibits before they are admitted into evidence (I.C.A.R. 45(c)(1)) and in-camera sessions or judicial deliberations (I.C.A.R. 45(c)(2)).
Photographing or videotaping of jurors is prohibited, including during jury selection. I.C.A.R. 45(h)(1). Unless the presiding judge allows otherwise, only one still photographer and one video camera may be allowed in the courtroom. I.C.A.R. 45(h)(9).
The presiding judge must give prior approval to all audio/visual coverage of courtroom proceedings, including the transmission of sounds and images via the Internet I.C.A.R. 45(g). Sample request forms are included within Idaho Court Administrative Rule 45 (I.C.A.R. 45(l)) and on the internet via The Media Guide to the Idaho Courts, http://www.isc.idaho.gov/resources/ISC_MediaGuide.pdf. The judge may, at his or her discretion, limit, restrict or prohibit without notice the use of motion and still cameras in the courtroom when the administration of justice requires. And, importantly, the judge’s decision is not subject to appellate review. I.C.A.R. 45(b).
Idaho Court Administrative Rules 46a and 46b provide for cameras in Idaho’s appellate courts— the Idaho Supreme Court and the Idaho Court of Appeals. Rule 46a governs all proceedings held at the Idaho Supreme Court building in Boise, while Rule 46b governs cameras in appellate proceedings held around the state as the Supreme Court travels around the state to hold hearings. Under either rule, prior approval must be obtained from the Chief Justice of the Supreme Court or the Chief Judge of the Court of Appeals and “will be limited to working media representatives and others approved by the Court.” For further guidance, see The Media Guide to the Idaho Courts, http://www.isc.idaho.gov/resources/ISC_MediaGuide.pdf, or the Idaho Press Club’s website, which includes a page entitled “Cameras in the Idaho Courtroom,” http://www.idahopressclub.org.
In Illinois, courts have allowed cameras in the courtroom with greater frequency since 2012. In an order entered January 24, 2012, the Illinois Supreme Court authorized the circuit courts to allow extended media coverage in courtrooms on an experimental, circuit-by-circuit basis. On February 22, 2016, the Illinois Supreme Court adopted the program as permanent. See Administrative Order for Extended Media Coverage in the Circuit Courts of Illinois, M.R. 2634 (2016). Under the program, the definition of ‘extended media coverage’ is “any media recording or broadcasting of proceedings by the use of television, radio, photographic, or recording equipment for the purpose of gathering and disseminating news to the public.” Id., Sec. 1.1. Cameras are allowed in state courtrooms only when authorized both by the Supreme Court and the trial court (known as the Circuit Court) in the circuit where the judge sits. See Ill. Sup. Ct. R. 44.
Media must request permission to broadcast, televise, record, or photograph trial proceedings. Administrative Order, M.R. 2634, Sec. 1.2. Media members must contact the circuit court’s media coordinator and submit all requests at least 14 days in advance of the time the proceeding is scheduled to begin. Id., Sec 1.3. If the proceeding is not scheduled at least 14 days in advance, the request should be submitted as soon as practicable after the proceeding is scheduled. Id. The judge may refuse, limit, amend, or terminate photographic or electronic media coverage any time. Id., Sec. 1.2. A decision by a judge to deny, limit or terminate extended media coverage is not appealable. Id.
Extended media coverage is not allowed in trial proceedings that involve: juveniles, divorce, adoption, child custody, evidence suppression, trade secrets, or other cases that Illinois law requires be held in private. Id. No more than two video cameras and two still photographers may cover a particular proceeding. Id., Sec. 1.4.
The Seventh Circuit prohibits the taking of photographs in, or radio or TV broadcasting from, the courtroom, any other place on the same floor as the courtroom, the judges’ chambers, and corridors adjacent to the judges’ chambers, except where allowed by the court. 7th Cir. R. 55.
The Northern District prohibits the taking of photographs, taping, and radio and television broadcasting on floors with courtrooms and certain other areas whether or not court is in session. N.D. Ill. R. 83.1(c). In addition, a joint order by the Seventh Circuit and Northern District establishes a media area in the lobby of the Dirksen Federal Building for use by media personnel during courthouse hours to permit members of the media to shoot footage and interview persons. See Joint Courthouse Security Order (August 23, 2018). The same rule prohibits any member of the media from soliciting or conducting any on or off-camera interview for broadcast or publication in the courthouse lobby other than within the designated media area, and from leaving the media area to film, photograph or interview persons passing through the courthouse lobby. Moreover, the same order prohibits media personnel from recording any video image of any uniformed courthouse security personnel on duty within the courthouse lobby or any image of any security equipment or device in the lobby. The dissemination of such a recording by someone in the media also violates the order.
The Central District does not allow electronic devices, including cameras and audio or video recorders, in the courthouse, except where the presiding judge in a case has granted a request to allow the equipment. C.D. Ill. R. 83.7. The Southern District prohibits the taking of photographs, audio recordings, and radio and TV broadcasting on the same floor as a courtroom, except when authorized by the court. S.D. Ill. R. 83.5; see also Fed. R. Crim. P. 53 (prohibiting the taking of photographs in or broadcasting from the courtroom during criminal proceedings).
Despite the varying local rules of the federal district courts in Illinois, the Seventh Circuit, by a resolution adopted by the Judicial Council of the Seventh Circuit on October 16, 1996, indicated that “the taking of photographs, making or audio or video recordings, or electronic broadcasting of judicial proceedings in or from a court room, must not be permitted by any district court . . . in this circuit.” On September 28, 2009, Chief Judge Frank Easterbrook admonished a district court judge who allowed video recording and live broadcasting (plus still photography) of a civil proceeding as they were contrary to the policy of the Judicial Council. Thus, although there are local rules on this issue, the Seventh Circuit’s policy clearly must be followed. In 2018, the Seventh Circuit adopted Operating Procedure 11, which allows for a “request for video-recording” to “be submitted to the Clerk of the Court not later than one week before oral argument.”
At the state level, cameras are permitted in appellate courts and the Illinois Supreme Court, and in trial courts when authorized by the Illinois Supreme Court. Ill. Sup. Ct. R. 44(b)(1); Administrative Order for Extended Media Coverage in the Circuit Courts of Illinois, M.R. 2634 (2016).
Taking photographs is allowed during proceedings in state courtrooms where authorized by the Supreme Court and the Circuit Court in the circuit where the judge sits. See Ill. Sup. Ct. R. 44; Administrative Order for Extended Media Coverage in the Circuit Courts of Illinois , M.R. 2634 (2016).
Webcasting is allowed under the same rules that allows broadcasting from the courtroom. In state courts, broadcasting is allowed where authorized by the Supreme Court and the Circuit Court in the circuit where the judge sits. Ill. Sup. Ct. R. 63(A)(8); Administrative Order for Extended Media Coverage in the Circuit Courts of Illinois , M.R. 2634 (2016).
The “Cameras in the Courtroom” guide explains that the media must fax a request to be a candidate for the media pool covering a Supreme Court argument. In the Court of Appeals, the media must request permission from the three-judge panel to allow equipment in the courtroom. However, appellate oral arguments are webcast live as they occur in the courtroom. Videos of oral arguments may be found here: http://mycourts.in.gov/arguments/. Cameras and recording in the trial courts are prohibited as outlined in Canon 2 of the Code of Judicial Conduct, Rule 2.17. The rule provides:
“Except with prior approval of the Indiana Supreme Court, a judge shall prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions, except that a judge may authorize:
(1) the use of electronic or photographic means for the presentation of evidence, for the perpetuation of a record, or for other purposes of judicial administration;
(2) the broadcasting, televising, recording, or photographing of investitive, ceremonial, or naturalization proceedings;
(3) the photographic or electronic recording and reproduction of appropriate court proceedings under the following conditions:
(a) the means of recording will not distract participants or impair the dignity of the proceedings;
(b) the parties have consented, and the consent to being depicted or recorded has been obtained from each witness appearing in the recording and reproduction;
(c) the reproduction will not be exhibited until after the proceeding has been concluded and all direct appeals have been exhausted; and
(d) the reproduction will be exhibited only for instructional purposes in educational institutions.”
See also Van Orden v. State, 469 N.E.2d 1153, 1157 (Ind. 1984) (rejecting defendant’s claim “that she was denied a fair and public trial due to the failure of the trial court to televise the proceedings”) (citing Nixon v. Warner Comm’cns, 435 U.S. 589 (1978)).
The Indiana Court of Appeals held that Judicial Rule 2.17, which prohibits broadcasting during court sessions, also prohibits broadcasting of courtroom recordings after the court proceedings have concluded. WPTA-TV v. State, 86 N.E.3d 442, 447 (Ind. Ct. App. 2017). The Indiana Court of Appeals also held that Judicial Rule 2.17 does not violate the First Amendment of the United States Constitution as an impermissible prior restraint. Id. at 449.
In another case, the Indiana Court of Appeals held that allowing the press to give live updates during a murder trial through Twitter did not deprive the defendant of due process. Compton v. State, 58 N.E.3d 1006, 1011–12 (Ind. Ct. App. 2016).
Iowa Court Rule 25.2 governs expanded media coverage in Iowa Courts. Expanded media coverage is defined as “broadcasting, recording, photographing, and live electronic reporting of judicial proceedings by the news media for gathering and disseminating news in any medium.” Iowa Ct. Rule 25.1.
“All regularly scheduled Iowa Supreme Court and Iowa Court of Appeals oral arguments will be available for streaming over the Internet and expanded media coverage.” Iowa Ct. Rule 25.5(1). Rules regarding objections to expanded media coverage do not apply to supreme court and court of appeals oral arguments. Id. “A written request for expanded media coverage of oral arguments of the supreme court or court of appeals must be filed with the clerk of the supreme court no later than the Friday immediately preceding the week in which the argument is to be held.” Id. at 25.5(2).
News media coordinators are appointed by the supreme court from a list of nominees provided by a representative of the news media whom the supreme court delegates. Id. 25.3(1). All requests for expanded media coverage in the courtroom, except initial appearances in criminal cases, are to be made through the designated media coordinator. Id. 25.3(2). The media coordinator, “shall inform the attorneys for all parties and the judicial officer at least seven days in advance of the time the proceeding is scheduled to begin.” Id. The time for notice may be extended or reduced by court order, and the news media coordinator “must give notice of the request as soon as practicable after the proceeding is scheduled.” Id.
Notice must be filed electronically or by paper copy with the clerk’s office. Id. In addition, a copy of the notice should be sent to all counsel of record, parties appearing without counsel, the court administrator, and the judicial officer expected to preside at the proceeding. Id. A notice form for the news media coordinator is found in Iowa Court Rule 25.2(4). “[T]he judicial officer, upon application of the news media coordinator, may permit the use of equipment or techniques at variance with the rules, provided the application for variance is included in the advance notice of coverage.” Id. 25.2(9).
A party to a proceeding may object to expanded media coverage. The objecting party must “file a written objection, stating the grounds for objection, at least three days before commencement of the proceeding.” Iowa Ct. Rule 25.3(3). In addition, all objections by witnesses shall be filed prior to commencement of the proceeding. Id. The judge may also, in his or her discretion, expand or reduce the time for filing objections. Id. Objections to expanded media coverage “shall be heard and determined by the judicial officer prior to the commencement of the proceedings.” Id. In addition, while the judge can rule on written objection alone, the judge may allow an objecting party to present additional evidence by affidavit or other means. Id. The judge, in his or her absolute discretion, may also permit the presentation of evidence by the news media coordinator in the same manner. Id.
Judges shall permit expanded media coverage of proceedings unless the judge concludes, on the record, “that under the circumstances of the particular proceeding, such coverage would materially interfere with the rights of the parties to a fair trial.” Iowa Ct. Rule 25.2(2). Expanded media coverage is prohibited of any court proceeding which, under Iowa law, is required to be held in private. Id. 25.2(5). Further, no coverage of any juvenile, dissolution, adoption, child custody, or trade secret cases is permitted unless consent is obtained from all parties, on the record. Id.
“The judicial officer may, as to any or all news media participants, limit or terminate expanded news media coverage at any time during the proceedings in the event the judicial officer finds that rules established under [Chapter 25 of the Iowa Court Rules] or additional rules imposed by the judicial officer, have been violated or that substantial rights of individual participants or rights to a fair trial will be prejudiced by such manner of expanded news media coverage if it is allowed to continue.” Id. 25.2(10).
In Iowa, expanded media coverage of a witness may be refused by the judge upon the objection and a showing of good cause by the witness. Id. 25.2(3). However, in cases dealing with sexual abuse, expanded media coverage of the testimony of a victim-witness is prohibited unless the victim-witness gives consent. Id. “Objection by a victim or witness in any other forcible felony prosecution, and by police informants, undercover agents, and relocated witnesses, shall enjoy a rebuttable presumption of validity.” Id.
Generally, expanded media coverage of jurors is prohibited, except to the extent it is unavoidable in the coverage of the proceedings. Id. 25.2(6). The policy behind the prohibition is to prevent unnecessary or prolonged coverage of individual jurors. Id. Expanded media coverage of jury selection is prohibited by the Iowa Court Rules. Id. But, expanded media coverage of the return of the jury’s verdict is permitted. Id.
Further, the “audio pickup or broadcast of conferences in a court proceeding between attorneys and their clients, between co-attorneys, between attorneys and the judicial officer held at the bench or in chambers, or between judicial officers in an appellate proceeding” is prohibited. Iowa Ct. Rule 25.2(7).
Iowa limits the amount of equipment and the number of broadcast media personnel in the courtroom. Iowa Ct. Rule 25.4(3). Where the limitations on equipment and personnel make it necessary, “the news media shall be required to pool equipment and personnel.” Id. Pooling arrangements are the sole responsibility of the news media coordinator, and the judicial officer will not mediate disputes arising from these arrangements. Id.
“The quantity and types of equipment permitted in the courtroom shall be subject to the discretion of the judicial officer” within the guidelines set out in Iowa Court Rule 25. Id. 25.2(8). In general, equipment used by media in the courtroom must be unobtrusive and not produce distracting sound or light. Id. 25.4. “[N]o flashbulbs or other artificial light device of any kind shall be employed in the courtroom.” Id. 25.4(2). Media personnel must demonstrate to the judge in advance of the proceeding that equipment meets the criteria set forth in the rules. Id. 25.4(1). A failure to obtain advance judicial approval for media equipment may preclude its use in the proceeding. Id.
In addition, “[a]ll news media equipment and personnel must be in place at least fifteen minutes prior to the scheduled time of commencement of the proceeding.” Id. “Not more than five total members of the news media using still cameras, television cameras, audio recorders, and electronic devices, or any combination of the four, to photograph, video, or record audio are permitted in the courtroom during a judicial proceeding.” Iowa Ct. Rule 25.4(3). In anticipation of significant media coverage of the oral argument in Varnum v. Brien, the case legalizing sex marriage in Iowa, the Iowa Supreme Court imposed seating and access limitations. In doing so, the court demonstrated it will endorse such controls, but the court also took steps to arrange for satellite locations to view the arguments and provided live streaming of the oral arguments on high capacity, high quality web bandwidth.
The Kansas Supreme Court historically has been accepting of the media’s use of cameras and other technologies to cover courts. In State v. McNaught, 713 P.2d 457 (Kan. 1986), the state supreme court reviewed how it had experimented with allowing media to use cameras in Kansas courtrooms beginning in 1981. In McNaught, cameras were an issue, because the appellant claimed that he had been convicted of a crime because of prejudicial pre-trial publicity. The supreme court rejected the claim, however, saying the appellant had “not shown that his rights were adversely affected by media coverage in the courthouse during the preliminary hearing, nor has he presented evidence that any individual juror’s ability to judge the defendant fairly was influenced by media coverage prior to trial.” McNaught,713 P.2d at 466.
Media coverage of Kansas judicial proceedings now is addressed by Kansas Supreme Court Rule 1001. A preface states that the rule applies to “various electronic devices including phones, tablets, and other wireless communication devices” in courtrooms. The preface includes an acknowledgement “that electronic devices have become a necessary tool for court observers, journalists, and participants.” According to the preface, courts “should champion the enhanced access and the transparency made possible by use of these devices.” At the same time, however, the preface states that courts must take care to protect “the integrity of proceedings within the courtroom.” Kan. Sup. Ct. R. 1001, Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf. Cameras have been allowed in Kansas courtrooms since 1981. Eric Weslander,“48 Hours” Sets Up for Murray Trial, Lawrence Journal-World (February 16, 2005).
Kansas Supreme Court Rule 1001 on media coverage applies to all types of judicial proceedings, and it prohibits use of laptops, cellphones and other electronic devices unless permitted by the presiding judge or justice. Rule 1001(e) specifies that the judge or justice may permit the “news and educational media and others” to use electronic devices. The permissible users are individuals “such as a publisher, editor, reporter, or other person employed by a newspaper, magazine, news wire service, television station, or radio station who gathers, receives, or processes information for communication to the public, or an online journal in the regular business of newsgathering and disseminating news or information to the public.” Those who want to use a device “must request specific permission in advance,” if they want “to record and transmit public proceedings, including real-time coverage, in Kansas courts.” In section (e)(2), the rule states that one who plans to request permission “to bring cameras, recording equipment, or other electronic communication devices into the courtroom” is required to give a week’s notice, although a judge may waive the requirement “for good cause.” According to section (e)(2), when individuals receive permission to use electronic devices, they may record video or audio, take photographs or otherwise engage in electronic communications “only for the purpose of education or news dissemination.” Kan. Sup. Ct. R. 1001, Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf.
Kansas Supreme Court Rule 1001 does not impose particular limits on use of electronic devices to video-record or photograph evidentiary exhibits, although a judge has discretion to prescribe limits. Under section (e)(3), the rule makes clear that the judge has “power, authority, or responsibility to control the proceedings.”
The rule includes restrictions on where devices may be used in a courtroom. According to section (e)(13), audio-visual equipment and operators “ordinarily should be restricted to areas open to the public.” They must stay within an area authorized by the judge and “may not move about the courtroom for picture-taking purposes during the court proceeding.”
In addition, section (e)(4) states: “Audio pickup and audio recording of a conference between an attorney and client, or among cocounsel, counsel and opposing counsel, or among attorneys and the judge are prohibited regardless of where conducted.” However, the rule does not prohibit photographing of such a conference. Section (e)(5) prohibits “[f]ocusing on and/or photographing materials on counsel tables or in designated areas.”
Section (e)(12) applies to pool coverage of court proceedings. The rule states that: “When more than one television station, still photographer, or audio recorder desires to cover a court proceeding,” a court-appointed coordinator will designate a pool photographer and audio recorder. In case of a dispute about the designation and operation of a pool, “no audio or visual equipment will be permitted at the proceeding.” A representative of the pool is to receive requests for copies of audio recordings, video, or photographs and to supply copies to the media at no more than actual cost. Participation in a pool is not required of individuals “who provide text accounts via approved electronic devices.”
Various provisions of the rule apply to electronic devices that can be used to take photographs or audio- or video-record witnesses or other participants in proceedings. Section (e)(3) provides that a judge’s “authority to disallow possession of electronic devices at a proceeding or during the testimony of a particular witness extends to any person” who is subject to the rule.
Section (e)(6) Prohibits photographing of jurors. The rule states that: “In a courtroom in which photography is impossible without including the jury as part of the unavoidable background, photography is permitted as long as no close-ups identify individual jurors.”
Under section (e)(7), a trial judge “must prohibit the audio recording and photographing of a participant in a court proceeding if the participant so requests and (a) the participant is a victim or witness of a crime, a police informant, an undercover agent, or a relocated witness or juvenile, or (b) the hearing is an evidentiary suppression hearing, a divorce proceeding, or a case involving trade secrets. Subject to a court directive to the contrary, the news media may record and photograph a juvenile who is being prosecuted as an adult in a criminal proceeding as authorized by K.S.A. 38-2347.”
Section (e)(9) prohibits photographing or any recording of a criminal defendant who is in restraints while being escorted to or from a court proceeding.”
In addition, section (e)(9) imposes some limits on use of electronic devices outside of the courtroom. The rule prohibits recording of an interview for electronic transmission, including broadcast, “in a hallway immediately adjacent to a courtroom entrance if a passageway is blocked or a judicial proceeding is disturbed thereby.” The rule also prohibits taking photographs “or other recording through a window or open door of a courtroom.” Kan. Sup. Ct. R. 1001, Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf.
Under Rule 1001(e)(15), a judge “may restrict operation of cameras or electronic devices which emit distracting sounds during court proceedings.” The rule recommends use of a “quieting device” with a still camera that is not designed to operate silently.” Kan. Sup. Ct. R. 1001, Media Coverage of Judicial Proceedings, http://www.kscourts.org/rules/Media_Coverage/Rule%201001.pdf.
Although Kansas Supreme Court Rule 1001 on media coverage of court proceedings does not mention Webcasting specifically, a judge may allow it the same as television broadcasting. Oral arguments before the Kansas Supreme Court are streamed in real time. See Kansas Supreme Court Live and Archived Oral Arguments, http://www.kscourts.org/kansas-courts/supreme-court/arguments.asp. Webcasting of at least two trials had been allowed by Kansas District Court judges as of October 2013, according to Ron Keefover, former information-education officer for the Kansas Judicial Branch. One trial was for a defendant charged with murder and arson in Kingman County, and the other was a murder case in Barton County. Hurst Laviana, Brett Seacat sentenced to life for wife’s murder, The Wichita Eagle (August 5, 2013), https://www.kansas.com/news/local/crime/article1120305.html, and Deb Farris, Adam Longoria found guilty of capital murder, KAKE-TV (April 6, 2012).
Tweeting from Kansas courtrooms has been allowed for some time. A federal district judge permitted a Wichita Eagle reporter to report via Twitter in a case in early 2009. Paul Farhi, The Twitter Explosion, American Journalism Review (April/May 2009), http://ajrarchive.org/article.asp?id=4756. Other judges followed suit, although not always without difficulty. For example, in 2012, a state district judge declared a mistrial after a reporter inadvertently live-tweeted photos that included the profile of a juror. Rachel Bunn, Reporter’s tweeted photo of juror leads judge to declare mistrial in murder prosecution, Reporters Committee for Freedom of the Press (April 16, 2012), https://www.rcfp.org/reporters-tweeted-photo-juror-leads-judge-declare-mistrial-murder-pr/.
Kentucky allows video and still cameras in the courtroom at the discretion of the presiding judge. Kentucky’s Supreme Court has promulgated Standards of Conduct and Technology Governing Electronic Media and Still Photography Coverage of Judicial Proceedings which govern video, still photography, and audio recording of judicial proceedings. Kentucky’s Standards of Conduct and Technology Governing Electronic Media and Still Photography Coverage of Judicial Proceedings do not specifically address webcasting, live blogging or tweeting. However, Kentucky’s trial courts have permitted webcasting and live blogging of trials by the news media in particular cases. Section 1 of Kentucky’s Standards of Conduct and Technology Governing Electronic Media and Still Photography Coverage of Judicial Proceedings limits the number of video, still photography and audio recording devices in a given proceeding. Section 1(e) requires that any “pooling” arrangements among media representatives as a result of the limits on the number of cameras or recording devices are the sole responsibility of the media. Section 1(b) of Kentucky’s Standards of Conduct and Technology Governing Electronic Media and Still Photography Coverage of Judicial Proceedings limits the number of still photographers to one, and limits the number of still cameras to two with not more than two lenses each.
Also, all Kentucky state trial court proceedings are recorded via audiovisual means, and copies are available to the public from the clerks’ offices.
The Louisiana courts are generally hostile to cameras and broadcasts of judicial proceedings. The rules concerning cameras in courtrooms are found, oddly, in the Canons of Judicial Conduct. Canon 3(A)(9) states: “Except as herein provided a judge should prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto at least during sessions of court or recesses between sessions.” In the district courts, “broadcasting, televising, recording, or taking photographs” are prohibited.
In the district courts, “broadcasting, televising, recording, or taking photographs” are prohibited. Canons of Judicial Conduct, Canon 3(A)(9). Exceptions are allowed only in three limited circumstances: (1) when done “for the presentation of evidence, for the perpetuation of a record for the court or for counsel, or for other purposes of judicial administration”; (2) for “investitive or ceremonial proceedings”; and, (3) with the consent of the court and the parties, where “the reproduction will be exhibited only for instructional purposes in educational institutions” and only “after the proceeding has been concluded and all direct appeals have been exhausted.”
Appellate courts “may permit broadcasting, televising, recording, and taking photographs of public judicial proceedings in the courtrooms of appellate courts.” Presiding appellate judges who authorize coverage are directed to exercise their authority to “(a) control the conduct of proceedings before the court, (b) ensure decorum and prevent distractions, and (c) ensure the fair administration of justice in the pending cause.”
A rather extensive Appendix to Canon 3 provides “Guidelines for Extended Media Coverage of Proceedings in Appellate Courtrooms.” In sum, the media (defined as “legitimate news gathering and reporting agencies and their representatives”) must give 20-days written notice to the clerk of the court; the consent of the parties is not required, although the parties may file objections at least 10 days prior to the event; the Court may prohibit or limit coverage, with or without objection by a party; and, most importantly, the “decision of the presiding judge on any question of coverage shall be final and shall not be subject to review by any other court.” If coverage is allowed, there are detailed rules in the Appendix governing the mechanics of the coverage, including limits on the number of cameras, placement of cameras, lighting, etc. Coverage is very rarely, if ever, allowed.
In addition, the Appendix to Canon 3 limits the use of footage as follows: “Film, videotape, photographs, and audio reproduction shall not be used for commercial or political advertising purposes. Such use of these materials will be regarded as an unlawful interference with the judicial process.”
Canon 3 of the Canons of Judicial Conduct, which governs the limited authorization for cameras and broadcasts of judicial proceedings, was last amended in 1993 and, thus, does not directly address webcasting, liveblogging, or tweeting. It is expected that the same rules would apply to webcasts as those discussed above in regards to cameras and broadcasts. Of particular note in the webcast context is that only the media are allowed to request to cover a judicial proceeding, and “media” is defined as “legitimate news gathering and reporting agencies and their representatives.” As an anecdotal matter, many judges do not allow court spectators to read newspapers or books while court is in session, but note-taking is typically allowed. A person typing on his keyboard or cellphone would be well-advised to do so as inconspicuously as possible. And, by all means, make certain that the cellphone ringer is silenced.
In 1986, the Justices of the Supreme Judicial Court unanimously informed the Governor, the President of the Senate, and the Speaker of the House that a newly enacted statute requiring that the courts promulgate rules allowing camera into the courtroom would be an unconstitutional violation of the separation of powers and “that its mandate is ineffective.” See Supreme Judicial Court Direct Letter of Address, Me.Rptr., 490-509 A.2d CXXVI-CXXIX (April 25, 1986). Since that time, the Supreme Judicial Court has self-regulated cameras in the courtroom through a series of administrative orders.
Despite several requests by the broadcast media to open all phases of criminal trials to cameras, the Maine Supreme Judicial Court has resisted revisions to Administrative Order JB-04-15, “Cameras and Audio Recording in the Courtroom” that would do so. The policy has evolved over the years from a position in the early 1980s of prohibiting camera coverage, with minor exceptions, to the court’s current more favorable stance. At present, camera coverage is generally allowed in civil trials, in appeals, and for those portions of criminal proceedings that do not involve testimony by witnesses. The place to start when requesting or arranging for camera or electronic coverage of the courts is to review that Order.
Cameras and audio recording equipment are allowed only if authorized. According the JB-04-15:
No cameras or audio recording equipment shall be allowed in the courtroom unless coverage of any events or proceeding has been authorized pursuant to this order. Justices of the Supreme Judicial Court, justices of the Superior Court, and judges of the District Court are authorized to consider camera and recording coverage, and to permit it in their sole discretion if the integrity of the court proceedings will not be adversely affected.
A request for camera coverage of court proceedings should be made by completing a required form, “Media Notification – Requested Coverage of Court Proceedings,” available on the court’s website. See http://www.courts.maine.gov/news_reference/news/index.shtml.
The Court’s Director of Court Information can facilitate requests and expedite responses.
The Supreme Judicial Court has in the past considered case-by-case special requests for access. In a notable instance, the Court ruled in favor (5-2) of a request by CBS News to place television cameras in a jury room to videotape jury deliberations in a civil trial. Administrative Order, 1996 Me. LEXIS 32, Docket No. SJC-228 (Feb. 5, 1996). The order required approval of the parties and the jurors before cameras would be permitted. CBS made the request in connection with a television documentary on the jury system.
The circumstances where cameras are permitted depend on the nature and status of the case.
Civil Proceedings. In civil proceedings cameras are generally permitted with the following exceptions:
- Family Division cases;
- proceedings where the care, custody, protection, harm, or any other significant issue involving a minor child are at issue. These proceedings include, but are not limited to, child custody, child protection, adoption, determination of paternity, and parental rights;
- proceedings for protection from abuse or harassment;
- proceedings in which sexual assault or sexual misconduct is at issue;
- proceedings that may involve disclosure of trade secrets; and
- proceedings closed to the public by statute, court rule, or court order.
Cameras and Audio Recording in the Courtroom, Admin. Order JB-04-15 § I(A)(1)(a)-(f).
Criminal Proceedings. In criminal proceedings, the use of cameras and other technology is much more limited. Coverage is allowed with judicial approval in non-jury pre-trial and post-trial proceedings, such as arraignments, Harnish hearings or other bail hearings, pre-trial motions to suppress, to dismiss, and motions in limine, sentencing proceedings, post-trial motions, probation revocation proceedings, and petitions for post-conviction review. See Admin. Order JB-04-15, § I(B)(1)(a). Coverage is limited to non-testimonial portion of such matters, with the exception of witnesses acting in an official or representative capacity, law enforcement personnel, private investigators, public officials, federal, state, county or municipal employees, expert witnesses, emergency and medical personnel, counselors and treatment providers, and representatives of corporate or business entities. Id. § I(B)(1)(b). Coverage is prohibited during the testimonial portion of a trial, but allowed during opening statements, closing arguments, jury instructions, and the delivery of the verdict. Id. § I(B)(1)(c).
Appeals. Prior advance approval for video or audio recording or photographing public sessions held by the Maine Supreme Judicial Court is not necessary, but any person or organization intending to record or photograph such proceedings must file a notice of intent to do so with the Clerk of the Supreme Judicial Court in advance of such hearing. Admin. Order JB-04-15 § I(D). Only one video camera and one photo camera (with silent shutter) is allowed in the courtroom for any particular proceeding; all persons seeking to record or photograph must pool their resources. Id.
The applicable Administrative Order does not distinguish between still cameras and other cameras or recording equipment. The Order allows photography of case file documents at the courthouse so long as that is done in a nondisruptive manner. Administrative Order JB-04-15 § I(E).
The applicable Administrative Order does not address webcasting. Courthouses in Maine do not have public wifi.
The applicable Administrative Order does not prohibit note taking, by computer or otherwise, and quiet and non-disruptive blogging and twittering are allowed with permission of the presiding officer.
Use of cameras in criminal trials and proceedings is forbidden by statute, see Md. Code Ann., Crim. Proc. § 1-201, and the use of cameras in the civil and appellate courts is limited. Maryland Rule 16-601, et seq., governs the use of cameras or other recording equipment by the news media in their reporting on civil and appellate proceedings. A press entity seeking permission to provide “extended coverage” of a proceeding (i.e., to record or broadcast proceedings “the use of recording, photographic, television, radio, or other broadcasting equipment,” see Rule 16-601(a)(1)) must submit a request in writing to the court clerk at least five days before the proceeding is scheduled to begin. Md. Rule 16-604(a). Extended coverage “may not be permitted in a proceeding in a trial court unless all parties to the proceeding have filed a written consent or consent on the record in open court,” except that no consent is required from government entities. Md. Rule 16-605(a)(2). All-party consent is not required in the Court of Special Appeals or Court of Appeals. Md. Rule 16-605(a)(4). Extended coverage is “limited to proceedings in the courtroom in the presence of the presiding judge,” and outside the courtroom extended coverage is prohibited “of persons present for a judicial or grand jury proceeding; and where the extended coverage is so close to a judicial or grand jury proceeding as likely . . . to identify persons present for the proceeding or . . . to interfere with the proceeding or its dignity or decorum.” Md. Rule 16-606(b)(1)-(2).
Furthermore, Rule 16-607 sets forth a number of limitations on the number of cameras allowed and where they may be positioned. In particular, no more than one television or movie camera is permitted in any trial court proceeding. Md. Rule 16-607(b)(1). Two cameras are permitted in appellate proceedings. Id. Likewise, only one still photographer, using no more than two cameras with no more than two lenses for each camera, may be present in a trial court. Md. Rule 16-607(c)(1). Only one “audio broadcast system” is permitted. Md. Rule 16-607(d)(1). Media entities are responsible for agreeing to pooling arrangements; if there is disagreement, the court can exclude all media representatives from conducting extended coverage. Md. Rule 16-607(e).
Supreme Judicial Court Rule 1:19 governs the recording and transmitting of proceedings in Massachusetts courts. The Rule establishes a presumption that news media may record and transmit court proceedings, subject to some limitations. S.J.C. Rule 1:19(2) (“A judge shall permit photographing or electronic recording or transmitting of courtroom proceedings open to the public by the news media for news gathering purposes and dissemination of information to the public, subject to the limitations of this rule.”).
Generally, a judge may limit media access “if it appears that such coverage will create a substantial likelihood of harm to any person or other serious harmful consequence.” S.J.C. Rule 1:19(2)(a).
Specifically, the following types of recordings are not permitted under any circumstances: photography or electronic recording of voir dire hearings; close-up photography of jurors and potential jurors; electronic recording of bench and side-bar conferences; electronic recording of conferences between counsel or between counsel and client. S.J.C. Rule 1:19(2)(b); see also Commonwealth v. Winfield, 985 N.E.2d 86, 92 n.3 (Mass. 2013).
In order to obtain authorization to record or transmit proceedings, representatives of news media organizations (or individuals not affiliated with media organizations, but who regularly perform media-like functions listed in the rule) must register with the Public Information Officer of the Supreme Judicial Court. S.J.C. Rule 1:19(2).
If a party seeks to prevent media coverage of a proceeding that would otherwise be open to the public, the party must deliver electronic notice of their motion “during regular business hours to the Bureau Chief or News Editor of the Associated Press, Boston, using the email address of firstname.lastname@example.org.” S.J.C. Rule 1:19(g).
Massachusetts courts maintain a Courtroom Media Access page with resources for the news media.
Cameras and other audio and video means of covering court proceedings are allowed during Minnesota Supreme Court and Court of Appeals hearings. Minn. R. Civ. App. P. 134.10. Notice of intent to cover a hearing must be provided to the Court Information Office at least twenty-four hours in advance. Id. Broadcast and photographic coverage are to be arranged on a pool basis, with only one TV camera and two still cameras permitted in the courtroom at any time. Id. Motor-driven still cameras may not be used. Id. The court has a right to determine the exact locations for all camera and video equipment in the courtroom. Id. All equipment must be in place and tested at least fifteen minutes before the hearing begins. Id.; see also Minn. R. Gen. Prac. 4.04 (technical standards for photography and broadcast coverage of judicial proceedings).
As for the trial courts, Minnesota is more restrictive than various other states. In criminal trial courtrooms, prior to the return of a guilty verdict or acceptance of a guilty plea, cameras are allowed only if the press obtains prior consent from the judge and the parties. Minn. R. Gen. Prac. 4.02(c). Judicial consent is also required for the use of cameras in civil trial courtrooms; however, consent of the parties is not required. Id.
As of November 10, 2015, the Minnesota Supreme Court authorized a pilot project permitting limited audio and video coverage of criminal courtroom proceedings held after a guilty verdict has been returned or a guilty plea accepted. Minn. R. Gen. Prac. 4.02(d). However, audio or video coverage of such proceedings is not permitted in any of the following circumstances: (i) if a jury present; (ii) if held in problem-solving courts, such as drug courts, mental health courts, veterans’ courts, and DWI courts; (iii) in cases involving charges of criminal sexual conduct brought under Minn. Stat.§§ 609.293-.352, or in cases involving charges of family or "domestic violence," as defined in Minn. Stat. § 609.02, subd. 16; or (iv) if a victim is testifying, unless that victim affirmatively acknowledges and agrees to the coverage in writing before testifying. Id. In all other circumstances, absent good cause, the judge must permit audio and video coverage of the hearing, if notice of intent to cover the hearing was provided to the Court Information Office at least ten days in advance. Id.; Minn. R. Gen. Prac. 4.03(a). Factors for determining good cause to prohibit coverage include (1) the privacy, safety, and well-being of the participants or other interested persons; (2) the likelihood that coverage will detract from the dignity of the proceeding; (3) the physical facilities of the court; and (4) the fair administration of justice. Minn. R. Gen. Prac. 4.02(d). Audio and video coverage must be limited to courtroom activity only and is not permitted during any recess or when a judge is not present. Id.
A link to the current procedures for requesting permission to use cameras in both trial and appellate courtrooms is available under the “Cameras in Courtrooms” tab at http://www.mncourts.gov/media.aspx.
The Mississippi Supreme Court has stated that “prohibiting cameras does restrict the ability of the public to access the proceedings, and . . . the complete exclusion of cameras should be resorted to only after less restrictive measures have been considered and found to be inadequate.” See In re WLBT, Inc., 905 So. 2d 1196, 1199 (Miss. 2005).
The use of photography and video cameras is governed by the Mississippi Rules for Electronic and Photographic Coverage of Judicial Proceedings (MREPC). Members of the media seeking to use electronic equipment must notify the clerk and court administrator at least 48 hours before the proceedings begin, although the presiding judge can waive or shorten this requirement. MREPC 5. Notification can be done by filing a Camera Coverage Notice, a copy of which is available on the Mississippi judiciary website. Any party can object to electronic coverage by filing a written motion no later than 15 days before the proceedings begin. MREPC 7.
The Mississippi Supreme Court set aside the trial court’s denial of a request to allow television coverage of sentencing proceedings, noting there was neither a constitutional presumption in favor of allowing television coverage of courtroom proceedings nor a constitutional prohibition against it. In re WLBT, Inc., 905 So. 2d 1196, 1198–99 (Miss. 2005). The court stated that prohibiting coverage restricts the public’s ability to access courtroom proceedings, and such exclusion should only be resorted to after less restrictive alternatives have proven inadequate. Id. at 1199. The Supreme Court held the circuit judge failed to provide sufficient reasons as to why allowing television coverage of the proceedings would have a substantial impact on the defendant’s right to a fair trial. Id. at 1200.
Under the MREPC, electronic media coverage is permitted in Mississippi trial and appellate courts, subject to the authority of the presiding justice or judge to (i) control the conduct of the proceedings, (ii) ensure decorum and prevent distraction, and (iii) ensure fair administration of justice in the pending case. MREPC 3(a).
Electronic media equipment can only be moved in or out of the courtroom before judicial proceedings begin, during recess, or at the end of the day. MREPC 4(e) (this does not apply to small, handheld electronic devices). Cameras must be “minimally intrusive”; the equipment is prohibited if it produces distracting light or sound. MREPC 4(a).
No more than one TV camera, radio audio system or still photographer is permitted unless the presiding judge says otherwise. MREPC 4(f). If a pooling arrangement is established, the information must be made available equally to all pool participants free of charge. MREPC 4(f).
No jurors or potential jurors can be shown until they are discharged; camera coverage is also prohibited during the jury selection process. MREPC 4(b). No audio recording is allowed for off-the-record conferences in the courtroom between the court and counsel, between counsel and co-counsel, or between counsel and clients or witnesses. MREPC 4(c).
Coverage of the following witnesses is prohibited: police informants, minors, undercover agents, relocated witnesses, victims and families of victims of sex crimes, and victims of domestic abuse. MREPC 3(d).
Coverage of the following matters is prohibited unless authorized by the presiding judge: divorce; child custody; support; guardianship; conservatorship; commitment; waiver of parental consent to abortion; adoption; delinquency and neglect of minors; determination of paternity; termination of parental rights; domestic abuse; motions to suppress evidence; proceedings involving trade secrets; and in camera proceedings. MREPC 3(c).
Electronic media guidelines also apply to still cameras.
The Mississippi Supreme Court and Court of Appeals broadcast their oral arguments via the Internet.
Supreme Court oral arguments are viewable in real time at: https://courts.ms.gov/appellatecourts/sc/scoa.php.
Court of Appeals oral arguments are viewable in real time at: https://courts.ms.gov/appellatecourts/coa/coaoa.php.
Effective March 1, 2017, the Nebraska Supreme Court has promulgated rules allowing “expanded news media coverage” in all county and district courtrooms in the state. Neb. S. Ct. R. §§ 6-2001 through 2005. Expanded news media coverage “includes broadcasting, recording, photographing, and live electronic reporting of judicial proceedings by the news media for gathering and disseminating news in any medium.” Id. at § 6-2002(A).
Expanded news media coverage is prohibited in: (1) pretrial criminal motions; (2) grand juries; (3) juvenile court; (4) criminal and civil cases where the plaintiff and/or defendant is under 19 years of age; (5) dissolution/divorce/modification/child support enforcement; (6) adoptions; (7) paternity cases; (8) protection order hearings; (9) guardianship/conservatorship/probate cases; (10) trade secret cases; and criminal and civil jury selection. Neb. S. Ct. R. § 6-2003(F). Expanded news media coverage of the testimony of an alleged victim/witness in civil or criminal cases when the victim/witness is under the age of 19 and the proceedings relate to sexual abuse or sexual assault is prohibited by Neb. S. Ct. R. § 6-2003(D)(2). A judge may deny expanded media coverage of a witness upon objection and a showing of good cause. Neb. S. Ct. R. § 6-2003(D)(1).
The Nebraska Supreme Court has designated media coordinators. Requests for expanded media coverage are made to the news media coordinator assigned to the court for which coverage is sought. Neb. S. Ct. R. § 6-2004(A)(1). Requests are made through a form available on the Supreme Court’s website, must be filed with the clerk of the court for which expanded coverage is requested, and must be filed at least seven business days before the proceeding is to begin. Id. Copies of the request must be served on the parties to the proceeding, the Supreme Court PIO, the appropriate court administrator and the judge presiding over the proceeding. Neb. S. Ct. R. § 6-2004(B)(2). Any party to the proceeding may object to expanded media coverage. The objection is served on the requester, other parties, the Supreme Court PIO, the appropriate court administrator and the presiding judge. Neb. S. Ct. R. § 6-2004(C)(2). The judge may rule on the objection the basis of the objection alone, or may take evidence. Neb. S. Ct. R. § 6-2004(C)(3). To sustain the objection, the judge must find that “under the circumstances of the particular proceeding, such coverage would interfere with the rights of the parties to a fair trial.” Neb. S. Ct. R. § 6-2003(B). The granting or denial of an objection to expanded media coverage is not appealable. Neb. S. Ct. R. § 6-2004(C)(5).
Technical requirements and specifications for equipment to be used in expanded media coverage are described in Neb. S. Ct. R. § 6-2005.
Permanent pool cameras are installed in the courtrooms of both the Nebraska Supreme Court and the Nebraska Court of Appeals, and oral arguments before those courts may be photographed, recorded, and broadcast, using such pool equipment. Neb. S. Ct. R. § 2-117 and 2-118.
With permission obtained in accordance with the Nevada Supreme Court Rules on Electronic Coverage of Court Proceedings, matters that are open to the public are subject to electronic coverage. Nevada Supreme Court Rule (“S.C.R.”) 230(2) provides:
“[T]here is a presumption that all courtroom proceedings that are open to the public are subject to electronic coverage. A judge shall make particularized findings on the record when determining whether electronic coverage will be allowed at a proceeding, in whole or in part. Specifically, the judge shall consider the following factors:
(a) The impact of coverage upon the right of any party to a fair trial;
(b) The impact of coverage upon the right of privacy of any party or witness;
(c) The impact of coverage upon the safety and well-being of any party, witness or juror;
(d) The likelihood that coverage would distract participants or would detract from the dignity of the proceedings;
(e) The adequacy of the physical facilities of the court for coverage; and
(f) Any other factor affecting the fair administration of justice.”
See also Solid v. Eighth Judicial Dist. Court of State in & for Cty. of Clark, 393 P.3d 666, 672 (Nev. 2017). The rules further define “electronic coverage” to mean “broadcasting, televising, recording or taking photographs by any means, including but not limited to video cameras, still cameras, cellular phones with photographic or recording capabilities or computers. S.C.R. 229(1)(d).
S.C.R. 230(1) requires:
1. News reporters desiring permission to provide electronic coverage of a proceeding in the courtroom shall file a written request with the judge at least 24 hours before the proceeding commences, however, the judge may grant such a request on shorter notice or waive the requirement for a written request. The attorneys of record shall be notified by the court administrator or by the clerk of the court of the filing of any such request by a news reporter. The written order of the judge granting or denying access by a news reporter to a proceeding shall be made a part of the record of the proceedings.
But the Rules on Electronic Coverage of Court Proceedings “do not govern the coverage of a proceeding by a news reporter who is not using a camera or electronic equipment.” S.C.R. 229(2)(a). Further, “[e]xcept as provided by these rules, the use of cameras, cellular phones or other electronic devices to photograph or record courtroom proceedings without the express permission of the judge is prohibited.” S.C.R. 229(2)(b).
The Rules on Electronic Coverage of Court Proceedings set forth the following limitations:
• Limitations (personnel), S.C.R. 237:
“Operation of video or still cameras in the courtroom will be allowed only for news reporters designated by the pool coordinator or by the court pursuant to these rules.”
• Limitations (jury), S.C.R. 238:
“1. Requirements of sequestration of the jury. In any case where a jury has been impanelled, such jury shall not be sequestered solely because of any activity authorized by these guidelines. This rule does not affect the authority of the judge to order sequestration for any other lawful purpose.
2. Photography of jury. Consent of the jury shall not be required. News reporters will not deliberately photograph the jury or individual jurors. However, it is recognized that, because of the physical layout of some courtrooms and the general trial activity in any courtroom, it may be impossible not to photograph some jurors as part of the proceedings. To the extent possible, news reporters shall locate and focus their equipment in such a manner as to minimize photographs of the jury.
3. News reporters shall not deliberately photograph the jury or individual jurors during the pendency of the proceeding. News reporters or news organizations who violate this provision may be excluded from further participation in electronic news coverage authorized in these rules.”
• Limitations (conferences of counsel), S.C.R. 239:
“Camera coverage shall be limited to proceedings open to the public. In order to protect the attorney/client privilege and the right to effective assistance of counsel, news reporters shall not record or broadcast by audio or video transmission the content of any privileged conference, including, but not limited to, conferences occurring between attorneys and their clients, between attorneys, between clients or between or among attorneys, their clients and the judge when the judge calls for a colloquy at the bench.”
• Limitations (consent of parties), S.C.R. 240:
“1. Consent of participants. The consent of participants to coverage is not required. The judge, however, in the exercise of sound discretion, may prohibit the filming or photographing of any participant who does not consent to being filmed or photographed. This is in recognition of the authority reposing in the judge, upon the exercise of sound discretion, to hold certain judicial proceedings, or portions thereof in camera and in recognition of the fact that certain proceedings or portions thereof are made confidential by law. This provision does not apply to jurors during the pendency of the proceeding as they are covered elsewhere in these rules.
2. Consent not to be given for payment. No witness, juror or party shall give consent to coverage for any payment, of any kind or character, either directly or indirectly.”
• Limitations (use of broadcast material), S.C.R. 241:
“1. Video, photography or audio reproductions may only be used for educational or informational purposes, and may not be used for unrelated advertising purposes.
2. Official record. The official court record of any proceeding is the transcript of the original notes of the court reporter or court recorder made in open court. Videos, photographs or audio reproductions made in a court proceeding as a result of these rules shall not be considered as part of the official court record.”
• Limitations (restricted access), S.C.R. 242:
“1. Court discretion. During the conduct of any proceeding at which the print media is ordered by the judge to be excluded, all other types of news reporters shall also be excluded.
2. News reporters shall have no greater rights of access than the public.
3. Audio or visual equipment authorized by these rules must not be operated during a recess in a court proceeding unless otherwise approved by the judge, with notice to counsel.”
There are additional requirements concerning the number of camera persons and still photographers permitted, the use of a single audio system, and placement of equipment in the courtroom. The Rules on Electronic Coverage of Court Proceedings can be found in S.C.R. 229-246.
Cameras are permitted in all court proceedings open to the public. In re WMUR Channel 9, 148 N.H. 645 (2002); Sup. Ct. R. 19; Superior Court Rule 204 (civil) and 46 (criminal); Circuit Court: Rule 1.4 (District Division), Rule 78 (Probate Division), and Rule 1.29 (Family Division).
New Mexico Court Rules provide that the broadcasting, televising, photographing and recording of court proceedings in the Supreme Court, Court of Appeals, district and metropolitan courts of the State of New Mexico are authorized in accordance with the guidelines which contain safeguards to ensure that this type of media coverage shall not detract from the dignity of the court proceedings or otherwise interfere with the achievement of a fair and impartial hearing. Rule 23-107 NMRA.
New Mexico has stated that the common-law right to inspect and copy judicial records encompasses not only documentary and written records but also videotapes, tape recordings and other electronic evidence. Live coverage of proceedings shall not be limited by the objection of counsel or parties, except that the court reserves to the individual courts the right to limit or deny coverage for good cause.
Pursuant to Rule 23-107 NMRA, (1) media coverage in the courts is subject at all times to the authority of the judge or judges to: (a) control the conduct of the proceedings before the court, (b) ensure decorum and prevent distractions, and (c) ensure fair administration of justice in the pending cause; (2) the presiding district judge has sole and plenary discretion to exclude coverage of certain witnesses, including but not limited to the victims of sex crimes and their families, police informants, undercover agents, relocated witnesses and juveniles; and (3) neither the jury nor any member of the jury may be filmed in or near the courtroom, nor shall the jury selection process be filmed.
In New Mexico, any party may request, or object to, cameras in the courtroom by written motion, which may be supported by affidavits, filed not later than fifteen days prior to trial. Rule 23-107 NMRA. In determining that cameras should not be allowed in the courtroom, a showing of prejudice is required. State v. Hovey, 1987-NMSC-080, ¶ 6, 106 N.M. 300, 303, 742 P.2d 512, 515. Thus, when restrictions on media coverage are sought in criminal cases, evidence must demonstrate that there is substantial likelihood that the presence of cameras will deny defendants a fair trial. If limitation is sought to protect other interests which involve important constitutional rights, a higher test should be required and the proponent of the ban should prove that a serious and imminent threat to some other important interest exists. State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 13, 98 N.M. 261, 265, 648 P.2d 300, 305 (citing N.M. Const. art. II, § 17; U.S. Const. amends. I, VI).
When still cameras are permitted—and unless otherwise agreed upon by the court—equipment and personnel shall be limited to not more than two still photographers utilizing not more than one still camera. Rule. 23-107 NMRA.
New Mexico courts have not yet spoken directly on the webcasting of trials.
New Mexico courts have not yet spoken directly on the liveblogging and tweeting of trials. Discrete district court rules banning cell phones and laptops in court effectively foreclose such broadcasting. However, the Supreme Court of New Mexico has discussed the propriety of judicial use of social media, ultimately cautioning that “[w]hile we make no bright-line ban prohibiting judicial use of social media . . . ‘friending,’ online postings, and other activity can easily be misconstrued and create an appearance of impropriety.” State v. Thomas, 2016-NMSC-024, ¶ 49, 376 P.3d 184, 198 (noting that judges must adhere to the Code of Judicial Conduct and avoid any appearance of impropriety when using electronic social media). The New Mexico Code of Judicial Conduct sets forth that “[j]udges and judicial candidates are also encouraged to pay extra attention to issues surrounding emerging technology, including those regarding social media, and are urged to exercise extreme caution in its use so as not to violate the Code.” Rule 21-001 NMRA. The Thomas opinion does not address other forms or uses of social media.
New York’s highest court has held:
Civil Rights Law § 52 does not prevent the press, including television journalists, from attending trials and reporting on the proceedings. What they cannot do under the statute is bring cameras into the courtroom. This is not a restriction on the openness of court proceedings but rather on what means can be used in order to gather news. The media's access is thus guaranteed. But it does not extend to a right to televise those proceedings.
Courtroom Television Network LLC v. State of New York, 5 N.Y.3d 222, 229, 833 N.E.2d 1197, 1200 (2005) (citing Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 23 (2d Cir.1984)).
Electronic and photographic media coverage of court proceedings is governed by N.D. Sup. Ct. R. 21. In general, the media entity must designate a person for each administrative unit with whom the court may consult as the entity’s representative. The entity may request the court at least 2 days before a judicial proceeding is pending to authorize coverage of the proceeding or all proceedings. Expanded media coverage may be permitted of all judicial proceedings, except proceedings specifically excluded by statute, Rule 21, or the judge’s discretion. A judge’s ruling on expanded coverage is not appealable. The judge may also limit or end expanded media coverage at any time. If expanded coverage is permitted, the equipment used should be unobtrusive, all coverage must comply with the court’s directives, and media members must at all times maintain proper decorum.
State v. Kelley, 15 Media L. Rep. 2124 (N.D. County Ct. 1988). Still camera coverage granted.
Rule 12 of the Rules of Superintendence for the Courts of Ohio governs the conditions under which broadcasting and photographing court proceedings will be allowed. Under Rule 12, judges must permit “broadcasting or recording by electronic means and the taking of photographs in court proceedings that are open to the public as provided by Ohio law.” Sup.R. 12(A). See also State ex rel. Dispatch Printing Co. v. Geer, 873 N.E.2d 314, 315 (Ohio 2007). The rule requires a written request for permission and the judge’s written order will become part of the record. Sup.R. 12(A).
While a judge may choose to restrict camera access in a juvenile proceeding, the judge must give all parties an opportunity to be heard on the closure. See Geer, 873 N.E.2d at 315. If allowing cameras in the courtroom, the judge must determine that allowing the cameras “would not distract the participants, impair the dignity of the proceedings or otherwise materially interfere with the achievement of a fair trial.” Sup.R. 12 cmt. However, judges can also impose limitations on camera access, including prohibiting audio pickup or broadcast of conferences between the attorney and client or the judge and the attorney. Sup.R. 12(C). The trial judge must also advise victims and witnesses of their “right to object to being filmed, videotaped, recorded or photographed.” Sup.R. 12(C). Rule 12 does not automatically ban recording or photographing of individuals in the courtroom; rather, “all parties affected must have the opportunity to respond to the possibility of any restriction, and any finding must be based upon evidence in the record.” Geer, 873 N.E.2d at 319.
The Rules also restrict the amount of television cameras (1 operator) and still photographers (1 photographer with 2 cameras) unless the judge specifically permits additional cameras in the courtroom. Sup.R. 12(B)(1)–(2). The media representative authorized to cover the proceeding shall be responsible for “pooling” arrangements. Sup.R. 12(B)(5). The judge may also allow non-distracting lighting. Sup.R. 12(B)(6). If there is a violation of any of the rules or a dispute with regards to “pooling,” the judge can revoke permission to broadcast or photograph the proceeding. Sup.R. 12(B)(5), (D).
Once the photographer obtains authorization, the judge will place the photographer inside the courtroom where the photographer has a clear view of the proceedings. Sup.R. 12(A), (B)(7). Still photographers, like television and radio representatives, cannot move about the courtroom once the judge has placed them except to leave and enter the room. Sup.R. 12(B)(7). The judge will not allow any distracting sound or light coming from the camera. Sup.R. 12(B)(6).
While Rule 12 does not specifically address the issue of webcasting, it appears webcasting of a proceeding falls under “broadcasting or recording by electronic means.” In fact, a former Medina County Common Pleas Court judge, Judge James Kimbler, has a YouTube channel featuring videos of proceedings in his courtroom. SeeJames Kimbler Channel, YouTube, https://www.youtube.com/user/insidethecourtmedina/videos (last visited Jan. 30, 2020).
Ohio courts have yet to address the issue of electronic devices in the courtroom, and the Rules of Superintendence do not speak directly to it. However, Rule 12(C) provides some guidance. Rule 12 states that, while the court is in session, “media representatives shall not be permitted to transmit or record anything other than the court proceedings.” Sup.R. 12(C)(4). The definition of the term “court proceedings” will be central to the future determination of this issue. A loose definition would allow greater flexibility, whereas a narrow interpretation may restrict the ability of the media and public to utilize electronic communication devices in the courtroom. Some Ohio Courts of Appeal have local rules regarding use of electronic devices in the courtroom. For example, Local Rule 21.2 of the First District Court of Appeals in Hamilton County provides: “During oral argument, no person present in the courtroom shall operate a cellular telephone or any other electronic communication or entertainment device without prior approval of the court.”
For many years, Canon 3(B)(10) of the Oklahoma Code of Judicial Conduct prohibited cameras and electronic recording or broadcasting equipment in the courtroom, “[e]xcept as permitted by the individual judge.” Cameras were not permitted over the objection of a criminal defendant, a juror, or a witness. The Canon was substantially similar to Fed. R. Crim. P. 53 and interpreted much the same way. See Nichols v. District Court of Oklahoma County, 2000 OK CR 12, 6 P.3d 506 (reversing trial court order permitting television coverage of preliminary hearing and trial over objection of criminal defendant). The court in Nichols declined the media’s invitation to rule on the constitutionality of the Canon. Historically, television coverage has been permitted when the criminal defendant has consented, Stafford v. State, 1983 OK CR 131, 669 P.2d 285; or when the coverage was allowed during sentencing (even though the defendant objected) and the defendant could not show any prejudice, Brennan v. State, 1988 OK CR 297, 766 P.2d 1385; Kennedy v. State, 1982 OK CR 11, 640 P.2d 971. One early case strongly endorsed and encouraged television coverage of judicial proceedings, Lyles v. State, 1958 OK CR 79, 330 P.2d 734, but that case was ignored in light of the language of Canon 3(B)(10).
Although the Oklahoma appellate courts have said that Canons in the Code of Judicial Conduct are not binding directives and do not have the force of law, see Nix v. Standing Com. On Jud. Perform. of Okl. Bar Ass’n, 1966 OK 264, 422 P.2d 203; Lyles v. State, 1958 OK CR 79, 330 P.2d 734, Canon 3(B)(10), generally prohibiting cameras in the courtroom, was religiously followed by Oklahoma judges.
Canon 3(B)(10) effectively gave the criminal defendant a “veto” over cameras in the courtroom until after a jury verdict. Under the usual interpretation of the Canon, to permit a camera in the courtroom over the objection of the defendant in any proceeding prior to jury verdict was tantamount to denial of his Sixth Amendment right to a fair trial. Nichols v. District Court of Oklahoma County, 2000 OK CR 12, 6 P.3d 506. On its face, the Canon would not prohibit electronic coverage of the sentencing or other post–verdict stage of the criminal proceeding, nor did it explicitly prohibit television coverage of a civil proceeding, except to the extent a witness or juror objected to being televised. Cameras were permitted during sentencing in Brennan v. State, 1988 OK CR 297, 766 P.2d 1385 and Kennedy v. State, 1982 OK CR 11, 640 P.2d 971 during a time when the language of an earlier version of the Canon was more solicitous of television coverage.
The Code of Judicial Conduct in Oklahoma was completely revamped effective April 15, 2011. It now consists of a series of rules under four Canons. What was Canon 3(B)(10) completely disappeared. It does not appear, however, that the judicial attitude toward cameras in the courtroom has changed significantly. Some judicial districts retain court rules that parrot the former Canon 3(B)(10). See, e.g., Rule 39.1, Rules of the Seventh and Twenty–Sixth Judicial Districts (Oklahoma and Canadian Counties) (effective August 22, 2013); Rule 11, Rules of the Fourteenth Judicial District (Tulsa County) (effective February 6, 2008); Rules of the Fifteenth Judicial District, Rule 28 (Adair and Sequoyah Counties) (effective September 1, 2007) and Rule 41 (Cherokee and Wagoner Counties) (effective April 1, 2011). Local court rules for several other judicial districts do not address the matter. See, e.g., Rules of the Northeastern Judicial Administrative District (four judicial districts covering Craig, Delaware, Mayes, Nowata, Osage, Ottawa, Rogers, and Washington Counties); Rules of the Eighteenth Judicial District (Pittsburg and McIntosh Counties).
In those instances when television coverage has been permitted, the electronic media have utilized pool coverage using a single television camera. As a matter of practical experience, judges have prohibited televising the jurors (in the courtroom), have used a “kill switch” to cut off audio during bench conferences, and have imposed other rules and conditions to minimize disruption in the courtroom. A still camera has generally been allowed when a television camera has been permitted.
Oklahoma has not established any uniform set of rules regarding webcasting, blogging, tweeting, or similar activity in the courtroom. As a general rule, a silenced cellphone can be used to text or tweet but the use of other electronic devices inside the courtroom of a state court is prohibited, although specific practices are subject to the preferences and control of the particular judge. The use of electronic devices in federal court is prohibited.
Oregon courts have adopted the Uniform Trial Court Rules (UTCR) that govern Oregon courtrooms. Uniform Trial Court Rule 3.180 provides for camera use in courtrooms, with various exceptions. The rule provides a presumption of access:
Upon request made prior to the start of a proceeding, and after notice to all parties, electronic recording [which includes video and audio recording] shall be allowed in any courtroom, except as provided under this rule. The court shall permit one video camera, one still camera and one audio recorder. The court may permit additional electronic recording consistent with this rule.
UTCR. 3.180(2) (emphasis supplied).
A judge may limit this access only after making findings of fact on the record and determining that the presence of equipment would interfere with the parties’ rights to a fair trial, or that the cost would interfere with the aims of justice. UTCR 3.180(4). Other portions of the rule allow the court to limit placement and manner of operating electronic equipment and limit the equipment to pool cameras. UTCR 3.180(10). Rule 3.180 can be found at https://www.courts.oregon.gov/rules/UTCR/2021_UTCR_ch3.pdf.
UTCR 3.180 allows judges to require pooling and requires parties to mediate disputes themselves or have the entire pool excluded. UTCR 3.180(10).
In 2018, the General Assembly enacted a law making it a misdemeanor to capture or transmit any photograph, video, or audio from a courtroom. 18 Pa. Con. Stat. § 5103.1. Specifically, the law prohibits a person from, “in any manner and for any purpose, us[ing] or operat[ing] a device to capture, record, transmit or broadcast a photograph, video, motion picture or audio of a proceeding or person within a judicial facility or in an area adjacent to or immediately surrounding a judicial facility without the approval of the court or presiding judicial officer or except as provided by rules of court.” Id. The statute defines “judicial facility” to include “a courtroom, hearing room or judicial chambers used by the court to conduct trials or hearings or any other court-related business or any other room made available to interview witnesses.” Id.
Criminal Proceedings: Rule 112 of the Pennsylvania Rules of Criminal Procedure states that courts “shall . . . prohibit the taking of photographs, video, or motion pictures of any judicial proceedings or in the hearing room or courtroom or its environs . . . .” The term “environs” is defined as “the area immediately surrounding the entrances and exits to the hearing room or courtroom.” Id.
The Pennsylvania Superior Court held in Commonwealth v. Davis, 635 A.2d 1062 (Pa. Super. 1993), that Rule 328 of Pennsylvania’s Rules of Criminal Procedure, which later was replaced by Rule 112, prohibited the photographing of jury views of a crime scene and any other location where criminal proceedings must be held outside of the physical courtroom. The language of Rule 328 prohibited “‘the taking of photographs in the courtroom or its environs or radio or television broadcasting from the courtroom or its environs during the progress of or in connection with any judicial proceedings.’” Id. at 1064 (emphasis added). The court held jury views were considered environs of the courtroom, and that the Rule was a permissible “time, place and manner restriction” that did not violate the First Amendment, as the press and public were fully able to witness the jury view. Id. at 1070.
Rule 112 also prohibits the transmission of communications by telephone, radio, television or advanced communication technology from the hearing room or the court or its environs during the process of or in connection with any criminal judicial proceeding. Some Pennsylvania courts have interpreted this rule to prohibit journalists from sending tweets, blog posts, texts and other internet postings from the courtroom, while others have permitted tweeting and other electronic communications from court.
In Commonwealth v. Hewlett, 189 A.3d 1004 (Pa. Super. 2018), an appellate court considered whether a trial court abused its discretion in a criminal case when it allowed the government to present evidence concerning a trial spectator’s cell phone use after a witness mentioned in her testimony that the spectator was using a cell phone in the courtroom, and the trial court found that the spectator was texting about the witness’s testimony. The appellate court ruled that the defendant had waived any challenge, and in a concurring opinion observed that the trial court had the authority to “enforce its order that a cell phone may not be used in its courtroom for any purpose, particularly during a trial and especially if the effect of such use is to intimidate a witness while she is testifying.” Id. at 1014-15 & n.3 (Bowes, J., concurring). The concurring judge agreed that a courtroom ban on cell phones was a “permissible restriction” on the “otherwise-protected First Amendment activity” of attending a trial. Id. at 1015 (Bowes, J. concurring). That judge explained that the cell phone ban was permissible “due to the overriding governmental interest in preserving the integrity of the trial.” Id.
The applicability of Rule 112 and Pennsylvania Rule of Judicial Administration 1910 (prohibiting recording without the court’s permission) are now in some doubt in connection with court proceedings that are held without a court reporter and are thus off the record. In Phila. Bail Fund v. Arraignment Court Magistrate Judges, 440 F. Supp. 3d 415 (E.D. Pa. 2020), a federal district court in Philadelphia held that the First Amendment allows the public to create unobtrusive audio recordings of bail hearings in Philadelphia where the court – as is common practice throughout Pennsylvania – did not produce any verbatim record of the hearings. The federal court noted that “[t]he right to attend [bail hearings] and take notes and then to obtain statistical data about bail hearings after the fact is not adequate under the circumstances presented to vindicate the public’s First Amendment right of access to the courts,” which is not limited “‘only to those who can squeeze through the door.’” Id. at 425-26 (quoting United States v. Antar, 38 F.3d 1348, 1360 (3d Cir. 1994)). While the court limited its holding to “the narrow circumstances present here,” id. at 425, as far as we are aware, this is the first decision anywhere finding that the First Amendment protects the public’s right to create its own recordings of court proceedings. It should be noted as a practical matter that the court gave the Philadelphia bail magistrates the option to start holding bail hearings on the record rather than allow the public to create its own recordings, see id. at 427, and the bail magistrates did so.
The Philadelphia bail magistrates appealed the district court’s decision to the U.S. Court of Appeals for the Third Circuit, which initially reversed the district court in a 2-1 panel vote. See Reed v. Bernard, 976 F.3d 302 (3d Cir. 2020). However, after the full Third Circuit voted to vacate the panel opinion and rehear the case en banc, see 984 F.3d 273 (3d Cir. 2020), the bail magistrates voluntarily dismissed their appeal. Accordingly, the original ruling allowing the public to record bail hearings in the absence of an official court record continues to apply.
Civil Proceedings: Rule 223 of Pennsylvania’s Rules of Civil Procedure, which gives the court authority to make orders and enforce rules “regulating or excluding the public or persons not interested in the proceedings,” includes an official note stating that “the exclusion of the taking of photographs or radio or television broadcasting is governed by” Pennsylvania Rule of Judicial Administration 1910. That rule provides that “[u]nless otherwise provided by . . . the Supreme Court of Pennsylvania, judges shall prohibit broadcasting, televising, recording or taking photographs in the courtroom and areas immediately adjacent thereto.” It makes exceptions for purposes of judicial administration; investitive, ceremonial or naturalization proceedings; and “instructional purposes in educational institutions.”
Rule 1910 also permits judges to exercise discretion to allow broadcasting, televising, recording and taking photographs of any trial court nonjury civil proceeding (excluding support, custody or divorce proceedings) if the parties consent. In such instances, each witness who is depicted or recorded also must consent, and a witness or party who objects should not be photographed or have his/her testimony broadcast or telecast. The rule further provides that the means of recording must not “distract [the] participants or impair the dignity of the proceedings.” Id. Permission for broadcasting, televising, recording and photographing any civil nonjury proceeding must first be expressly given by the judge.
The Pennsylvania Rules of Civil Procedure do not include a rule like Criminal Rule 112 concerning the use of “advanced communication technology” in court.
Local Court Rules for Civil Proceedings in the Court of Common Pleas: When considering the possibility of recording a civil proceeding in the Court of Common Pleas, one should always consult the local rules and individual practices of the presiding judge, some of which may contain special provisions for technology in the courtroom. While not an exhaustive list, below is a summary of certain counties that have adopted such rules:
In Adams County, Rule 140 of the Adams County Rules of Judicial Administration, prohibits “pictures or photographs [to] be taken immediately preceding or during sessions of [the court] or recesses between sessions, in any of the courtrooms or at any place in the courthouse within forty (40) feet of the entrance of the courtroom unless specially allowed by the President Judge.” The rule also prohibits any court proceeding from being “broadcasted or televised,” or “mechanically or electronically recorded except by the official court reporter unless specifically allowed by the President Judge or the Judge presiding over that proceeding.” For pictures or photographs of any party to a civil or criminal action, juror, or witness, “knowledge and consent of the person or persons photographed” is required for photographs taken “in the law library or in any office or other room of the courthouse.”
In Westmoreland County, Rule W300 of the County Rules of Civil Procedure states that generally there “shall be no broadcasting, televising, recording or the taking of photographs in the courtroom and areas immediately adjacent thereto” in civil proceedings. This rule applies during sessions of court or recesses in between. There are exceptions for the “presentation of evidence,” “perpetuation of a record,” or “other purposes of judicial administration.” There are also exceptions for “investiture, ceremonial, or naturalization proceedings.”
The Westmoreland County Rules further specify that the “photographic or electronic recording and reproduction of appropriate court proceedings” may be authorized at the discretion of the court, but must meet the following conditions.
(1) The means of recording will not distract participants or impair the dignity of the proceedings; and
(2) The parties have consented, and the consent to being depicted or recorded has been obtained from each witness appearing in the recording and reproductions; and
(3) The reproduction will not be exhibited until after the proceeding has been concluded and all direct appeals have been exhausted; and
(4) The reproduction will be exhibited only for instructional purposes in educational institutions.
Before a Magisterial District Judge: Photographing, broadcasting, televising, or recording of judicial proceedings is prohibited in all proceedings before a magisterial district judge by Rule 2.8(C) of the Rules Governing Standards of Conduct for Magisterial District Judges.
Before an Appellate Court:
Supreme Court: The internal operating procedures of the Pennsylvania Supreme Court lay out the general provisions of photographing, recording, and broadcasting proceedings in the Supreme Court. See 210 Pa. Code § 63.9. The Executive Administrator of the Supreme Court may permit photography, broadcasting, and recording at their discretion, and any request to photograph and or broadcast must be made at least three business days prior to the proposed date. In addition, the internal operating procedures set out specific rules for the Pennsylvania Cable Network (“PCN”) to record Supreme Court proceedings.
Commonwealth Court: The Commonwealth Court’s internal operating procedures allow recording by PCN of en banc proceedings before the Commonwealth Court. See 210 Pa. Code § 69.502. The internal operating procedures provide detailed rules about PCN’s recording.
Superior Court: There are no specific Superior Court rules regarding cameras and other technology in the courtroom.
Developments During the COVID-19 Pandemic:
During the first phase of the COVID-19 pandemic in the spring of 2020, Pennsylvania courts took unprecedented emergency measures to encourage the use of advanced communications technologies to conduct proceedings and to allow ongoing access to courts through virtual and electronic means. On April 28, 2020, the Supreme Court ordered that “[i]n proceedings as to which a right to public and press access would otherwise exist, provision must be made to ensure some reasonable means of access,” including by live-streaming proceedings or making a recording available as soon as possible, despite Pennsylvania court rules prohibiting broadcasting. In re Gen. Statewide Judicial Emergency, 230 A.3d 1015, 1018 (2020). It was left to individual Pennsylvania courts to implement this order. See, e.g., First Judicial District of Pennsylvania, Public Access to Judicial Proceedings During the Covid-19 Pandemic (updated May 21, 2021), available at https://www.courts.phila.gov/pdf/Public-Access-to-Judicial-Proceedings-Livestream-Policy.pdf. Despite this extraordinary relaxation of the rules – and the fact that the courts themselves were publishing or even livestreaming their proceedings – the prohibitions on independent recording, transmission, or broadcasting of judicial proceedings found in Pennsylvania Rule of Criminal Procedure 112 and Rule of Judicial Administration 1910 remained in place.
As of August 2021, the future of these emergency measures remains uncertain. On June 21, 2021, the Supreme Court ordered that “[e]ffective July 6, 2021, operation of the Unified Judicial System shall return to pre-pandemic status.” Order, In re General Statewide Judicial Emergency, No. 553 Judicial Administration Docket (Pa. June 21, 2021). Local president judges no longer have the power to declare local judicial emergencies justifying the closure of courts or suspension of the rules, as they must seek approval from the Supreme Court for such a declaration.
The judiciary is studying the future use of remote proceedings in the wake of the pandemic. In the spring of 2021, the Administrative Office of Pennsylvania Courts in conjunction with the Pennsylvania Conference of State Trial Judges established a Remote Proceedings Task Force, and, in June 2021, the Task Force issued a report on the Continued Use of Advanced Communications Technology (ACT) Following the Termination of Judicial Emergencies.
The Rhode Island Supreme Court has promulgated Article VII of the Supreme Court Rules, which governs the activities of the “media” in covering “court proceedings.” See Sup. Ct. R., Art. VII, Rules 2, 3. “Media” is defined to include “persons engaged in televising, broadcasting, videotaping and/or photographing (either with still or motion picture camera) of court proceedings.” See Sup. Ct. R., Art. VII, Rule 2. “Persons engaged in taking written notes for the printed press” are not included in the general definition of “media” except where separately indicated in Article VII. Id. “Court proceedings” is defined to include “all judicial proceedings in the Supreme Court, Superior Court, District Court, Workers’ Compensation Court and Family Court,” though “media coverage shall not be permitted in respect to juvenile proceedings, adoption proceedings or any other matters in the Family Court in which juveniles are significant participants in the court proceedings.” See Sup. Ct. R., Art. VII, Rule 3.
Under Article VII, “televising, photographing or broadcasting” is only permitted in courtrooms, while court proceedings are taking place. See Sup. Ct. R., Art. VII, Rule 3(a). Televising, photographing, or broadcasting is forbidden in courthouse corridors or other parts of courthouses other than inside of a courtroom, and are forbidden during recesses or other times when court is not in session. See id. Additionally, televising or broadcasting hearings which take place outside the presence of a jury is forbidden “[d]uring or immediately preceding a jury trial.” See id. at Rule 3(b). The rule lists as examples of hearings which may not be televised “motions to suppress evidence, motions for judgment of acquittal or directed verdict, hearings to determine competence or relevance of evidence, motions in limine, and motions to dismiss for legal inadequacy of the indictment, information or complaint (criminal or civil).” Id. No reported case has determined when a matter can be said to be “immediately preceding a jury trial.”
Aside from these prohibitions, the majority of the rules in Article VII focus on the methods and conduct of broadcasting court proceedings. No more than one camera operated by a single camera person is permitted to record trial court proceedings, and only two cameras operated by one camera person each are permitted to record appellate proceedings. See Sup. Ct. R., Art. VII, Rule 4(a). Likewise, only one still photographer is permitted to take photographs of trial or appellate proceedings, and the photographer is limited to two cameras with two sets of lenses for each camera. Id. at Rule 4(b). Only one audio recording system is permitted, which must either record using the courtroom’s existing microphone systems or must use microphones and wiring to be installed “unobtrusively” in areas “designated in advance of any proceeding by the trial justice.” Id. at Rule 4(c). Article VII recognizes that these limitations may require media to reach “‘pooling’ arrangements” and places the onus of doing so on the media—in the event that media outlets cannot reach their own agreements, Rule 4 states that “the trial justice shall exclude all contesting media personnel from a proceeding,” rather than mediate the dispute. Id. at Rule 4(d).
Equipment that produces any “distracting sound or light” or that uses artificial light to record or photograph judicial proceedings is forbidden, as is the use of camera lights or camera flashes. See id. at Rule 5(a), (b). Still cameras may not produce “greater sound or light than a 35mm Leica ‘M’ Series Rangefinder camera.” See id. at Rule 5(b). Media personnel who wish to photograph or take video recordings of court proceedings must “obtain advance judicial approval for equipment,” and they have an affirmative duty to demonstrate to the trial justice that their equipment will meet with the requirements of Rule 5. See id. at Rule 5(c). That said, the trial justice or presiding justice using a particular courtroom may approve changes to courtroom lighting “provided that such modifications or additions are installed and maintained without public expense, and further providing that such modifications and additions are approved by the appropriate building authorities for safety and compatibility with electrical services established in such facilities.” See id. at Rule 8.
The trial justice—or, for courtrooms which are “used by a number of trial justices for limited periods,” the presiding justice or chief judge of the respective court—shall designate the places where cameras and still photographers may be placed, and requires that those individuals not move themselves, move any fixed equipment (including microphones), or act to draw attention to themselves during court proceedings. See id. at Rule 6(a), (b), & (c); see also Rule 7 (additionally forbidding changing of still or video camera lenses or film except prior to court proceedings or during recesses). These designated locations “shall provide reasonable access to coverage.” See id. at Rules 6(b), 6(c). Additionally, the court may designate areas “remote from the court facility which provide reasonable access to coverage” for video and audio recording, and may limit all video and audio recording to those areas. See id. at Rule 5(a). “Video tape recording equipment which is not a component part of a television camera shall be located in an area remote from the court facility.” Id.
It is forbidden to record or broadcast conferences between attorneys and their clients, between co-counsel of clients, or between counsel and the trial justice. See id. at Rule 9. It is also forbidden to photograph, broadcast, or televise prospective jurors during voir dire, or to photograph or broadcast individual impaneled jurors without their consent. See id. at Rule 10. If the designated camera or photography sections of courtrooms make it impossible to photograph or broadcast the proceedings without including the jurors as part of the “unavoidable background,” it is permissible for the jurors to be in the frame, but “closeups that clearly identify individual jurors are prohibited. Trial justices shall enforce this rule for the purpose of providing maximum protection of juror anonymity.” Id.
Though Article VII regulates the ability of the media to record and photograph court proceedings, nothing in Article VII guarantees that access in any particular case. See id. at Rule 1 (preserving authority of trial justice to control the conduct of judicial proceedings and the inclusion or exclusion of the press or the public from proceedings), Rule 11 (authorizing the trial justice to limit the photographing or recording of any participant and to exclude all media coverage over a given case). Under Rule 11, a trial justice’s decision to preclude the recording, photographing, or broadcasting of any given trial, proceeding, or participant in a trial or proceeding, is left to the justice’s sole discretion and is not subject to appeal or review of any kind. See id. at Rule 11. Likewise, under Rule 12 “[t]he Chief Justice of the Supreme Court, the Presiding Justice of the Superior Court, the Chief Judges of the Family, District or Workers' Compensation Courts, or the Chief Magistrate of the Rhode Island Traffic Tribunal may in their discretion issue special orders concerning the conduct or presence of media representatives and/or equipment in areas of the courthouse outside a particular courtroom that is subject to the control of the trial justice or magistrate.” These orders include restrictions on vehicle parking and limitations on placing equipment “on land or sidewalks contiguous to a courthouse.” Id. at Rule 12. These orders may be enforced by the exclusion of “media representatives and/or equipment” for any length of time the respective judge deems appropriate in their discretion, including for the length of a particular trial or proceeding.
South Carolina Appellate Court Rule 605 provides that, generally, “the broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions is prohibited.” However, the rule identifies certain exceptions, one of which is for media coverage. A presiding judge may allow use of “video, still cameras or recorders” to cover court proceedings after reasonable notice has been given to the judge by the media representative. S.C. App. Ct. R. 605(f)(1)(i).
If the judge requires written notice, the media should use Form 1 (https://www.sccourts.org/forms/searchType.cfm). The presiding judge may “refuse, limit or terminate media coverage of an entire case, portions thereof, or testimony of particular witnesses as may be required in the interests of justice,” according to the rule. The rule also explicitly prohibits audio pickup or broadcast of conferences in court facilities between courtroom participants (including parties, witnesses, attorneys and judges) and also prohibits the photographing of jurors or prospective jurors “except when they happen to be in the background of other subjects being photographed.” S.C. App. Ct. R. 605(f)(2)(iii).
Any person desiring to record or broadcast a courtroom proceeding should provide a completed Form 1 to the presiding judge as soon as possible before the start of the proceeding. It is advisable to submit this completed form before the day of a proceeding, if possible, but certainly, at least 30 minutes before the start of the proceeding, if done on the same day.
Some judges may require all journalists, even journalists not using cameras or other technology, to complete Form 1.
To determine the presiding judge over a matter, a media member should visit the South Carolina Judicial Department website (https://www.sccourts.org/index.cfm) to view court rosters and individual judges’ contact information.
The circuit courts of South Dakota do not allow cameras or recording, but the Supreme Court permits cameras, video and audio recording and broadcasting. See S.D. Codified Laws § 15-24-5; S.D. Codified Laws § 15-24-6(c); S.D. Codified Laws § 15-24-12. Authorization is provided in S.D. Codified Laws § 15-24-5, § 15-24-6(c) and § 15-24-12. Cameras are permitted only during Supreme Court proceedings. Pooling, if required by limitations, is arranged by a “media coordinator” appointed from media by the court. S.D. Codified Laws § 15-24-12(e); S.D. Codified Laws § 15-24-10. Two still cameras are permitted in Supreme Court. S.D. Codified Laws § 15-24-12(b). Webcasting is permitted in the Supreme Court. See S.D. Codified Laws § 15-24-6.
Tennessee Supreme Court Rule 30: Media Guidelines governs cameras and other technology in the courtroom. For specifics on media recording or broadcasting of court proceedings, a copy of the rule is available at the Tennessee court's website. Rule 30’s “provisions create a presumption in favor of in-court media coverage of judicial proceedings.” State v. Morrow, No. 02C01-9601-CC-00022, 1996 WL 170679, at *3 (Tenn. Crim. App. Apr. 12, 1996). “[A]ny finding that such coverage should be denied, limited, suspended, or terminated must be supported by substantial evidence that at least one of the four interests [in the Rule] is of concern in the case before the court and that the order excluding or limiting, etc., is necessary to adequately reach an accommodation of the interest involved.” Id. at *5.
Authorization: Under Tennessee Supreme Court Rule 30, camera and audio coverage is generally allowed in “public judicial proceedings,” subject to the presiding judge's discretion to limit or deny coverage for set reasons: to “(i) control the conduct of the proceedings before the court; (ii) maintain decorum and prevent distractions; (iii) guarantee the safety of any party, witness, or juror; and (iv) ensure the fair administration of justice in the pending cause.” But the use of cameras and other technology in courtrooms pursuant to Rule 30 is restricted to representatives of the media. Tenn. Sup. Ct. R. 30A(1). “Media” is defined in the statute as “legitimate news gathering and reporting agencies and their representatives whose function is to inform the public, or persons engaged in the preparation of educations films or recordings.” Requests pursuant to Rule 30 must be made in writing two business days before the proceeding you want to record is scheduled to begin to the presiding judge. Tenn. Sup. Ct. R. 30 A(2). The presiding judge may waive this requirement. Id.
The rule also places certain limits on coverage, such as prohibiting coverage of minor participants and jurors; and identifies procedures for evidentiary hearings on coverage limits and appellate review.
Limitations on footage: Tennessee Supreme Court Rule 30C prohibits certain behavior for the following participants and/or circumstances:
- Minor Participants: Media coverage of a witness, party, or victim who is a minor is prohibited in any judicial proceeding, except when a minor is being tried for a criminal offense as an adult.
- Jury Selection: Media coverage of jury selection is prohibited.
- Jurors: Media coverage of jurors during the judicial proceeding is prohibited.
- Closed proceedings: Media coverage of proceedings which are otherwise closed to the public by law is prohibited.
- Juvenile Court Proceedings: In juvenile court proceedings, if the court receives a request for media coverage, the court will notify the parties and their counsel of the request, and prior to the beginning of the proceedings, the court will advise the accused, the parties, and the witnesses of their personal right to object, and that if consent is given, it must be in writing. Objections by a witness will suspend media coverage as to that person only during the proceeding, whereas objections by the accused in a criminal case or any party to a civil action will prohibit media coverage of the entire proceeding.
- Conferences of Counsel: There shall be no audio pickup, recording, broadcast, or video close up of conferences, which occur in a court facility, between attorneys and their clients, between co-counsel of a client, between counsel and the presiding judge held at the bench or in chambers, or between judges in an appellate proceeding.
There are other limitations in Rule 30 that anyone wanting to record any portion of a judicial proceeding should review.
In civil cases, broadcasting, televising, recording, or photographing courtroom proceedings are only permissible in three circumstances: (a) where in accordance with Supreme Court of Texas-approved guidelines; (b) where the parties consent and the activity will not unduly distract trial participants or harm the courtroom’s dignity; or (c) where the proceeding is ceremonial. See Tex. R. Civ. P. 18c. County Local Rules governing media activity in the courtroom which have been approved by the Supreme Court of Texas fall within the first category. See In re BP Prods. N.A., 263 S.W.3d 117, 119 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Local rules on this topic, where they exist, will vary county to county. Local rules for courts in each county can be found on the Texas Judicial Branch website: http://maps.txcourts.gov/.
In the criminal context, courts may allow cameras in the courtroom so long as they do not impair the ability of the jury to render an impartial verdict. See, e.g., Hendershot v. State, No. 13–10–00452–CR; 2012 WL 3242018, at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 9, 2012, pet. ref’d); see also Graham v. State, 96 S.W.3d 658, at 660–61 (Tex. App.—Texarkana 2003, pet. ref’d) (“[I]n the absence of aggravating factors, broadcast activity in a courtroom is not, standing alone, inappropriate when properly controlled by the court.”). In September and October 2019, a Dallas County District Judge allowed the livestreaming of the high-profile murder trial in which former Dallas police officer Amber Guyger was convicted of the murder of her neighbor, Botham Jean. See David Tarrant, News media all-in on Amber Guyger trial as viewers watch live-stream feeds, Dallas Morning News, Sept. 23, 2019, https://www.dallasnews.com/news/crime/2019/09/23/news-media-all-in-on-amber-guyger-trial-as-viewers-watch-live-stream-feeds/.
Appellate courtroom proceedings may be broadcast, televised, recorded, or photographed where permitted by the court. See Tex. R. App. P. 14.1. The Texas Supreme Court livestreams its oral arguments, and a number of the courts of appeals post argument audio recordings on their websites.
Effective November 11, 2015, “[t]here is a presumption that electronic media coverage by a news reporter shall be permitted in public proceedings where the predominant purpose of the electronic media coverage request is journalism or dissemination of news to the public.” 2015 Utah Court Order 0016 (amending Utah Code Jud. Admin. 4-401.01). “The judge may prohibit or restrict electronic media coverage in those cases only if the judge finds that the reasons for doing so are sufficiently compelling to outweigh the presumption.” Id.
The Utah Code of Judicial Administration sets forth a number of factors that a judge must consider when “determining whether the presumption of electronic media coverage has been overcome and whether such coverage should be prohibited or restricted beyond the limitations in this rule.” Utah Code Jud. Admin. 4-401.01(2)(B). Any restriction on electronic media coverage must be supported by particularized oral or written findings on the record. Id.at 4-401.01(2)(C).
In 1988, the Vermont courts enacted rules which focused primarily on the recording of court proceedings by news media using the video and still cameras and audio equipment common at that time for broadcasting or publication. See V.R.C.P. Rule 79.2 (civil proceedings); V.R.Cr.P. Rule 53 (criminal proceedings); V.R.P.P. Rule 79.2 (probate proceedings); V.R.A.P. Rule 35 (Vermont Supreme Court proceedings); see also V.R.F.P. 4.0(a)(2) and V.R.E.C.P. 3 (applying Vermont Rules of Civil Procedure, includingV.R.C.P. 79.2 to public proceedings in family and environmental proceedings). Subject to certain exceptions, these rules authorize the media “to record proceedings of the court, in the courtroom and areas immediately adjacent thereto which are generally open to the public” except when the judge assigned to the proceeding in question, on the judge’s own motion or on a motion of a party or request of a witness, directs otherwise prior to or during the proceeding in question. V.R.C.P. Rule 79.2; V.R.Cr.P. Rule 53; V.R.P.P. Rule 79.2; see also V.R.A.P. Rule 35 (“The news media may record proceedings of the Supreme Court, unless the Chief Justice directs otherwise.”). Proceedings are defined broadly to include any event which occurs in open court in an action or court case to which the Vermont Rules of Civil, Criminal or Probate Procedure apply. V.R.C.P. Rule 79.2; V.R.Cr.P. Rule 53; V.R.P.P. Rule 79.2.
Under the current rules, “recording” is defined as “the recording of sounds or images by microphone, tape recorder, camera or other audio or visual recording equipment for live transmission or for later transmission, broadcasting or other use, by a member of the news media, or any other person other than the person creating the official court record.” V.R.C.P. Rule 79.2; V.R.Cr.P. Rule 53; V.R.P.P. Rule 79.2; see also V.R.A.P. Rule 35 (containing substantially similar language). The rules exclude audio recording of bench conferences or conferences between members of the court, between co-counsel or between counsel and his or her client. Id. Moreover, the rules exclude recording in the courtroom during a recess, bench conferences, or proceedings in chambers, unless permitted by the presiding judge. Id.
In May 2019, however, the Vermont Supreme Court promulgated an order abrogating and replacing Rule 79.2 of the Vermont Rules of Civil Procedure, Rule 53 of the Vermont Rules of Criminal Procedure, Rule 79.2 of the Vermont Rules of Probate Procedure and Vermont Supreme Court Administrative Directive No. 28. See http://www.vermontjudiciary.org/attorneys/rules/promulgated. The new rule 79.2, effective September 3, 2019, replaces the previous rules with a statement making the civil rule applicable to proceedings in the criminal and probate divisions. No change has been effected for V.R.F.P. 4.0(a)(2) or V.R.E.C.P. 3, so V.R.C.P. 79.2 will continue to apply to public proceedings in the family and environmental divisions.
These revised rules were developed by a special committee which included representatives of the media. The new rules “reflect extensive advances in technology that place the ability to record and transmit images and sound in the hands of any person in a courthouse or courtroom with a smartphone or other portable electronic device in his or her possession.” Reporter’s Note, Order Abrogating and Replacing Rule 79.2 of the Vermont Rules of Civil Procedure, Rule 53 of the Vermont Rules of Criminal Procedure and Rule 79.2 of the Vermont Rules of Probate Procedure and Abrogating Vermont Supreme Court Administrative Directive No. 28.
The new rule governs both possession and use of recording and transmitting devices. Rule 79.2(c) broadly provides that a device may be used non-disruptively anywhere in a courthouse. Rule 79.2(d) contains limits on use applicable to anyone possessing or using a device in a courtroom. The new rule, supplemented by Administrative Order No. 46, lays out a scheme for registration of media and their representatives entitling them to use devices to record and transmit courtroom proceedings. The new rule provides that participants may use devices in the courtroom with some restrictions. The new rule also allows nonparticipants to possess devices in the courtroom, but to use them only in limited circumstances. Devices must be turned off or in silent mode, except during non-evidentiary hearings when the jury or jury pool is not present. The rule also contains provisions applicable to jurors. Rule 79.2(e) sets limits designed both to protect the decorum and the necessary confidentiality of certain proceedings. The new rule allows limits on use, but contains a presumption in favor of media access. Rule 79.2(f) states that the court may waive any of the limitations imposed by the rule on request for good cause and subject to any necessary or appropriate restrictions. The rule abrogates current Administrative Directive No. 28, which concerns use of electronic devices in a courtroom.
Virginia does not recognize a right to video, record or photograph court proceedings. Pursuant to Va. Code § 19.2-266, trial courts have “sole discretion” to permit or deny photography and filming in the courtroom during both civil and criminal proceedings. The trial court’s decision is subject to judicial review, albeit under a highly deferential abuse of discretion standard. The “good cause” standard referenced in § 19.2-266 applies only after the trial court has made a threshold determination to allow coverage in the courtroom; a party may then move to prohibit or restrict the coverage for good cause. There is no requirement that evidence be presented to the trial court to support the decision, and the trial court is not required to explain its reasons for denying a request. See Virginia Broad. Corp. v. Commonwealth, 286 Va. 239, 749 S.E.2d 313 (2013).
Audio/video and photography coverage is prohibited in adoption proceedings, juvenile proceedings, child custody proceedings, divorce proceedings, temporary and permanent spousal support proceedings, proceedings concerning sexual offenses, proceedings for the hearing of motions to suppress evidence, proceedings involving trade secrets, and in cameraproceedings. Va. Code § 19.2-266(2). Certain witnesses, including police informants, minors, undercover agents and victims and families of victims of sexual offenses, cannot be recorded or photographed. Va. Code § 19.2-266(3). Jurors cannot be recorded or photographed at any stage of the proceedings. Va. Code § 19.2-266(4). Lastly, there shall be no recording or broadcast of sound from such conferences which occur in a court facility between attorneys and their clients, between co-counsel of a client, between adverse counsel, or between counsel and the presiding judge held at the bench or in chambers. Va. Code § 19.2-266(5).
None of the film, video tape, still photographs or audio reproductions developed during or by virtue of coverage of a judicial proceeding shall be admissible as evidence (i) in the proceeding out of which it arose, (ii) in any proceeding subsequent and collateral thereto, or (iii) upon any retrial or appeal of such proceedings. See Va. Code § 19.2-266.
The Virginia Supreme Court’s policy governing requests to photograph or video record oral arguments is available on the court’s website. See “Media Policies for Coverage of Arguments in the Supreme Court of Virginia,” dated October 26, 2015. Generally speaking, such a request should be coordinated through the Virginia Press Association, and the decision to allow photography or video-recording is within the court’s sole discretion.
General Rule 16 provides that “video and audio recording and still photography by the news media are allowed in the courtroom” unless the judge makes “particularized findings on the record” that “sufficient reasons exist to warrant limitations on courtroom photography or recording.” Although permission to video and audio record must be expressly granted by the judge before recording, open access is “presumed.” GR 16 further instructs that in “determining what, if any, limitations should be imposed the judge shall be guided by the following principles”:
(1) Open access is presumed; limitations on access must be supported by reasons found by the judge to be sufficiently compelling to outweigh that presumption;
(2) Prior to imposing any limitations on courtroom photography or recording, the judge shall, upon request, hear from any party and from any other person or entity deemed appropriate by the judge; and
(3) Any reasons found sufficient to support limitations on courtroom photography or recording shall relate to the specific circumstances of the case before the court rather than reflecting merely generalized views.
Commentary to the rule includes “illustrative guidelines,” carried over from earlier access rules, suggesting the following practices are favored (though subject to the trial judge’s discretion):
- Broadcasters wishing to record a proceeding should contact the courtroom bailiff prior to the start of a court session.
- Generally, a single television camera will be allowed, and interested media should arrange for “pooling” outside the courtroom.
- Broadcast equipment should be unobtrusive and handled inconspicuously and quietly and should be in place at least 15 minutes before the start of each court session.
Broadcasting a trial does not infringe on a criminal defendant’s due process rights, unless he can show specific prejudice. See State v. Wixon, 30 Wash. App. 63, 631 P.2d 1033 (1981).
Washington courts have upheld prohibitions on photographing juvenile witnesses without their consent. See State v. Russell, 141 Wash. App. 733, 172 P.3d 361 (2007).
Under West Virginia Trial Court Rule 8, courts have the discretion to approve or deny a media request to allow cameras or audio equipment in or around the courtroom. W. Va. Trial Ct. R. 8.01. The media must request access at least one day in advance of the hearing. W. Va. Trial Ct. R. 8.02. A party, witness, or counsel may object, and the presiding judicial officer will rule on the objection. Id.
Camera coverage is limited to public proceedings. W. Va. Trial Ct. R. 8.04. To protect attorney-client privilege, the media shall not broadcast any conferences occurring between or among attorneys and their clients, or between attorneys, their clients and the presiding officer. Id. Without the presiding officer’s prior approval, no one can identify or show jurors. W. Va. Trial Ct. R. 8.10. A juror is not prohibited from voluntarily disclosing his or her identity after the juror’s term of service. Id.
Rule 8, http://www.courtswv.gov/legal-community/court-rules/trial-court/chapter-1.html#rule8, outlines detailed requirements for equipment, personnel, and location of equipment. W. Va. Trial Ct. R. 8.06–8.07. Where there is a request from more than one video photographer or more than one still photographer, the media must work out a pooling arrangement. W. Va. Trial Ct. R. 8.08. None of the film, videotape, photograph or audiotape developed during any proceeding is admissible as evidence. W. Va. Trial Ct. R. 8.09.
Rule 42 of the Rules of Appellate Court Procedure, http://www.courtswv.gov/legal-community/court-rules/appellate-procedure/Part-IX.html#rule42, governs media access for appellate court proceedings. W. Va. R. App. P. 42. This rule is similar to the trial court rule, but there are a few noteworthy distinctions.
The media must notify the public information officer (“PIO”) for the West Virginia Supreme Court of Appeals as far in advance as possible to request coverage. W. Va. R. App. P. 42(b). If the PIO is not available, they must notify the clerk. Id.
The media must use only the court’s live audio feed, and there is a designated area for reporters who want to take notes using laptop computers. W. Va. R. App. P. 42(f)–(g). Media interviews are prohibited inside the courtroom but may occur in the hallway designated outside the courtroom or by the PIO. W. Va. R. App. P. 42(h).
As in the trial court rule, the media must work out pooling arrangements unless a case has attracted nationwide interest. W. Va. R. App. P. 42(i). In those instances, the PIO and the clerk will oversee pooling arrangements. Id.
The Supreme Court of Appeals webcasts all arguments live on its website. W. Va. R. App. P. 42(j). The media may not rebroadcast the website in any manner without the court’s permission. Id.
See Wis. Supreme Court Rule (“SCR”) 61.03:
(1) Except as otherwise provided in sub. (2), 3 television cameras, each operated by one person, and 3 still photographers, each using not more than two cameras, are authorized in any court proceeding. Priority consideration shall be extended to one the three cameras to televise an entire proceeding from beginning to end.
(2) The trial judge may authorize additional cameras or persons at the request of the media coordinator or may limit the number of cameras if circumstances permit the increase or require the limitation.
(3) One audio system for radio broadcast purposes is authorized in any court proceeding.Audio pick up for all media purposes shall be made through any existing audio system in the court facility, if practical. If no suitable audio system exists in the court facility, microphones and related wiring shall be as unobtrusive as possible.
See SCR 61.02(1): “The Wisconsin freedom of information council shall designate for each judicial administrative district a coordinator who shall work with the chief judge of the judicial administrative district and the trial judge in a court proceeding in implementing this chapter.”
See SCR 61.02(2): “If possible, the trial judge shall be given notice, at least 3 days in advance, of the intention of the media to bring cameras or recording equipment into the courtroom. In the discretion of the trial judge, this notice rule may be waived if cause for the waiver is demonstrated.”
See SCR 61.11:
(1) A trial judge may for cause prohibit the audio recording and the photographing of a participant with a film, videotape or still camera on the judge’s own motion or on the request of a participant in a court proceeding.
(2) Individual jurors shall not be photographed, except in instances in which a juror or jurors consent.
See also State v. Wakeman, 2008 WI App 148, 314 Wis. 2d 260, 757 N.W.2d 850 (unpublished) (Defendant presented no evidence of cause to prohibit cameras in courtroom); State v. D’Acquisto, 121 Wis. 2d 697, 359 N.W.2d 181 (1984) (unpublished) (no right to photograph jurors).
Rule 53 of Wyoming Rules of Criminal Procedure allows cameras in the courtroom at the discretion of the presiding judge. The rule applies to civil cases pursuant to Rule 804 of the Uniform Rules For District Courts. Application must be made at least 24 hours prior to the proceeding.
In a trial of major importance, the court may require pooling. Cameras must be set up prior to the beginning of the proceedings. No close-ups of jurors are permitted. Bench conferences are off-limits. The court may “for cause” prohibit videotaping or photographing of a participant. Orders limiting photography of crime victims, confidential informants, undercover agents and in suppression hearings are presumptively valid.
Rule 53 mentioned above covers both still photography, audiotaping and videotaping of court proceedings.
Wyoming has no specific rules regarding webcasting.
Wyoming has no specific rules regarding liveblogging or twittering.