The Florida Judicial Administration Committee is proposing a ban on video cameras inside courtrooms that would affect everybody except corporate media journalists.

“They are trying to set a standard, but we think they are going too far,” said Jim Rhea, director of the Florida First Amendment Foundation, in a telephone interview with Photography is Not a Crime Wednesday.

The First Amendment Foundation is protesting the proposed ban along with several other groups, including the Florida Press Association, Florida Association of Broadcasters, Reporters Committee for Freedom of the Press and Citizens for Sunshine, Inc.

Currently, journalists are allowed to bring cameras into the courtrooms if they go through a formal process of filling out a document. Usually, only one videographer is allowed into the courtroom, who must then share the video with other agencies.

But these are the huge cameras mounted on tripods and the videographer. There are no rules regarding hand-held devices from people attending the hearing, which could be citizen journalists or simply people wanting to document a public hearing.

“The judge always has the authority to control the courtroom,” Rhea said. “If he thinks they are being disruptive, then he can order them to stop videotaping.”

But is somebody sitting in the courtroom holding a handheld device that is not making any beeping or clicking sounds anymore disruptive than the news videographer standing in the corner with his tripod?

Of course not.

The problem with the proposed ban is that it not only allows authorities to forbid videotaping, it allows them to confiscate cameras – which is a huge Constitutional violation considering it would be done so without a warrant.

This concern is outlined in a letter from Sarasota attorney Andrea Flynn Mogensen, who is representing Citizens for Sunshine, Inc.

The rule is overbroad and fails to comport with the spirit and the intent of the requirement that Florida courts be open to all members of the public.  Further, the proposed rule constitutes a prior restraint and raises substantial constitutional questions insofar as it authorizes a seizure without a warrant of personal property as well as the deletion of images and recordings of an individual without providing sufficient due process safeguards. 

The other problem, as Morgensen states in her letter, is that it creates a special class of journalists in an era when those definitions have been broken down

 Finally, the narrow exception for professional journalists in the proposed rule undermines the ability of non-traditional media to participate as observers and provide the public information about judicial proceedings.  Several courts have held that such distinctions have evaporated in the modern world.  See, e.g., Sheehan v. Gregoire, 272 F.Supp.2d 1135, 1139, n. 2, 1145 (W.D. Wash. 2003) (websites are “analytically indistinguishable from newspaper[s].”); Ostergren v. McDonnell, 2008 WL 3895593 *9, n.3 (E.D. Va., August 22, 2008) (“Indeed, it might be said that the Internet has taken over the role of traditional print media. It can hardly be contested that there is an ongoing shift away from traditional print media toward the internet.”).  The distinction in the proposed rule for “professional journalists” fails to recognize that the public obtains the majority of information about court proceedings from sources other than traditional news media.

The Judicial Administration Committee has is no longer accepting public comments regarding this proposed ban, but several organizations were able to send letters before the February 1st deadline, including the one below by Sam Morley, attorney for the Florida Press Association:

The Florida Press Association, Florida First Amendment Foundation, Florida Association of Broadcasters, and Reporters Committee for Freedom of the Press object to proposed new Rule… 2.451 dealing with the use of electronic devices as it pertains to journalists. The rule gives judges and quasi-judicial officers the authority to ban and confiscate devices such as digital and video cameras, audio recorders, and cell phones but provides an “exception” for “professional journalists” as defined in section 90.5015, Florida Statutes. The rule’s incorporated definition of “professional journalists” is a narrow one used for purposes of the journalist’s shield law. This definition limits “journalists” to salaried employees or independent contractors for traditional news establishments such as newspapers and television networks. Thus, the proposed rule on controlling devices would apply to anyone the judge considers as not falling within this narrow definition of a “professional journalist.” [Under the proposed rule, those “professional journalists” not subject to the new rule would continue be governed by the general technology coverage of Rule 2.450 that mainly pertains to cameras in the courtroom.]

We believe the professional journalist definition of the shield law is not appropriate in the context of limiting devices; it is way too narrow to use in the current context and would result in the exclusion of a substantial array of non-salaried or non-contracted journalists who might not fit under this definition. For example, free-lance journalists, community association reporters, book authors, citizen bloggers, as well as journalists working for web-based news organizations could all be banned from using devices routinely used on a daily basis by a broad spectrum of the public, thereby in practical effect preventing coverage of the court proceedings of the day. This, we believe, is a serious intrusion on public access and press freedoms.

 The protection of public access to judicial proceeding serves fundamental constitutional values. In particular “the value of openness lies in the fact that people actually attending trials can have confidence that standards of fairness are being observed.” Sarasota Herald-Tribune v. State, 924 So. 2d 8, 12 (Fla. App. 2 Dist. 2005) (quoting Press-Enter. Co. v. Superior Court, 464 U.S. 501, 508 (1984)). A trial courtroom is a “public place where people have a general right to be present, and what transpires in the courtroom is public property.” Plaintiff B. v. Francis, No. 5:08-cv-79, 2010 WL 503067, *2 (N.D. Fla. Feb. 5, 2010). As for the press’s role, as the Florida Supreme Court has noted, it plays an indispensable function in maintaining “the judicial system’s credibility in a free society.” Barron v. Florida Freedom Newspapers, Inc., 531 So. 2d 113, 116 (Fla. 1998).

We believe that the rule as currently written seriously undermines these values. Anyone who is not a salaried or contracted reporter is a potential target of the rule. The presiding judge is free to ban a potentially large category of individuals from using tools necessary to report on the proceedings. Press credibility cannot be maintained when members of the public and media are dependent on the judge’s unbridled discretion on banning devices. The rule as written is of special concern in light of today’s fast-moving digital world where “traditional” media is difficult – if not impossible – to define, has many moving parts, and certainly cannot be limited to salaried journalists as defined in the shield law.

We would also note that the rule does not apply any specific standard. The rule permits control or confiscation if the manner of use “is determined to be disruptive to the judicial proceeding.” A balancing test or some standard should be applied to reflect the importance of technology to providing public oversight and access.

Of course we have no objection to ordinary and uniform procedures to ensure court security and administration of justice and to control appropriate use of such devices by jurors. However, a rule allowing judges to ban a broad swath of devices commonly used in the course of legitimate reporting deprives the press and citizens of rights established under Florida law and the U.S. constitution. The rule also leaves opening for unintended abuse.

We urge you to revoke or change the rule so that it is narrowly tailored to control devices based on ordinary security measures yet allows for full observation and reporting of proceedings by all members of the public reporting the proceedings.

Respectfully submitted,

Samuel J. Morley, General Counsel