B. Cameras and other technology in the courtroom
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).
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. United States v. Edwards, 785 F.2d 1293, 1296 (5th Cir. 1997).
Whether television broadcasting in proceedings other than criminal will depend on the rules of the court. For example, in the Eastern District of Louisiana, television broadcasting of federal trials is prohibited by local rule. United States v. Edwards, 785 F.2d 1293, 1294 (5th Cir. 1997). 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, A Trial and a Twitterstorm: On Live-Tweeting from a Federal Courthouse, at the following link:
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.
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.
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.”).
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:
1. 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.
2. 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).
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.”
The new Rule 22, which was promulgated February 6, 2018, to take effect May 1, 2018, is available at https://www.gasupreme.us/wp-content/uploads/2018/02/USCR_22_Order-FINAL_Feb-6.pdf.
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.
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.
Administrative Order JB-04-15, “Cameras and Audio Recording in the Courtroom” § 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 Administrative 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. Administrative 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.
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.
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 Uniform Trial Court Rules (UTCR) that govern Oregon courtrooms. Uniform Trial Court Rule 3.180 provides for camera access to courtrooms, with various exceptions. The rule provides a presumption for 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/2018_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).
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.” (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. Davis, 635 A.2d at 1070.
Rule 112 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.
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 “unless otherwise provided by the Supreme Court of Pennsylvania, judges should prohibit broadcasting, televising, recording and 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 civil rules of 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 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, electronic, 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.”
The rule for broadcasting, televising and photographing criminal proceedings in Westmoreland County is that all such activities are explicitly prohibited by Rule WC112 of the Westmoreland County Rules of Criminal Procedure. The prohibition of those activities applies “anywhere in the courthouse during the progress of or in connection with any criminal judicial proceeding.”
Before a District Justice: Photographing, broadcasting, televising, or recording of judicial proceedings is prohibited in all proceedings before a District Justice by Rule 2.8(C) of the Rules of Conduct, Office Standards and Civil Procedure 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 Superior Court rules regarding cameras and other technology in the courtroom.
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.
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. The media must request access at least one day in advance of the hearing. A party, witness, or counsel may object, and the presiding judicial officer will rule on the objection.
Camera coverage is limited to public proceedings. 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. Without the presiding officer’s prior approval, no one can identify or show jurors. A juror is not prohibited from voluntarily disclosing his or her identity after the juror’s term of service.
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. 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. None of the film, videotape, photograph or audiotape developed during any proceeding is admissible as evidence.
Rule 42 of the Rules of Appellate Court Procedure, http://www.courtswv.gov/legal-community/court-rules/appellate-procedure/Part-IX.html#rule42, govern media access for appellate court proceedings. This rule is similar to the trial court rule, but there are a few noteworthy distinctions.
The media must notify the public information officer for the West Virginia Supreme Court of Appeals as far in advance as possible to request coverage. If the PIO is not available, they must notify the clerk.
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. Media interviews are prohibited inside the courtroom but may occur in the hallway designated outside the courtroom or by the PIO.
As in the trial court rule, the media must work out pooling arrangements unless a case has attracted nationwide interest. In those instances, the PIO and the clerk will oversee pooling arrangements.
The Supreme Court of Appeals webcasts all arguments live on its website. The media may not rebroadcast the website in any manner without the court’s permission.
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.