Another judge has taken an authoritarian approach to the U.S. Constitution by banning photography outside a courthouse, a battle he will surely lose if history is any indicator.
This time, it is Chief Justice Robert Brutinel of the Arizona Supreme Court, a man who should know better considering he has practiced law for almost 40 years.
But power is blinding as we are reminded daily with these stories.
Some of you may remember when a Florida judge tried to bar photography outside a courthouse back in 2015, an order he made specifically to keep reporters from Photography is Not a Crime from recording outside the Duval County Courthouse.
But Judge Mark Mahon ended up rescinding his order after we filed a lawsuit against him. We then withdrew the lawsuit on the advice of our attorney. The legal battle was covered by the Florida Times-Union who wrote an article headlined "Who is 'Photography is Not a Crime," the Group Challenging Jacksonville's Court System?"
Now Mahon's Wikipedia page serves as a permanent reminder of his failed power play, stating the following underneath the subhead "controversy":
After becoming Interim Chief Judge of Florida's 4th Circuit Court based in Jacksonville, on July 1, 2015, Mahon issued a Summary Order prohibiting photography in public places, criticism of the court and specifically "speech that ‘degrade[s] or call[s] into question the integrity’ of judges on courthouse sidewalks" of the Duval County Courthouse, a move that was denounced by lawyers and activists as unconstitutional due to violation of the First Amendment.
On July 7, Mahon altered his order to drop speech prohibitions but retain prohibitions on photography from public sidewalks. On the same day, PINAC and local activists filed federal lawsuit against Mahon's order, alleging prior restraint of free speech. On July 15, Mahon rescinded the order completely after increasing media attention and criticism.
Brutinel's Wikipedia page is free of controversy at the moment but that will probably change after he ends up rescinding his order which bans photography and videography outside the Arizona Supreme Court as well as the Court of Appeals building in Tucson
Brutinel's order prohibits video recording, photography or live broadcasting from areas around the two buildings, including the entrances, steps, patios and sidewalks.
Brutinel claims he is merely trying to keep people from blocking the entrances, specifically protesters who have apparently being doing that in the past, according to a court spokesperson.
But Dan Barr, an Arizona First Amendment attorney, points out the order does not even keep protesters from gathering in front of the courthouse. It only bans photographers from documenting the protesters, according to the Arizona Daily Star.
“The court certainly has the power to ensure that people can walk in and out of the courthouse unimpeded,” Barr said. “But that has nothing to do with people taking photos of them.”
And then there is the legal issue of banning photography outside the court building.
“That’s more than problematic,” Barr said.
“It’s unconstitutional,” he said. “Whoever did this, I don’t think really thought it through.”
When coming across a person recording outside the courthouse, the order states that court staff or security personnel will “direct the person to immediately stop and delete the recording.”
The person will then be ordered to "leave the facility" if they do not stop recording. And if the person continues recording, then police will be called, the order states.
What is not stated in the order is that a citizen could eventually be killed by police for not complying with unlawful orders by continuing to exercise their First Amendment right to record in public where nobody has an expectation of privacy. Not to mention a citizen can be arrested for recording the death.
There is no mention of the ban on the Facebook page of the Arizona Supreme Court which includes photos of the courthouse from outside.
If you live in Arizona and would like to challenge the order, please send me an email at firstname.lastname@example.org so we can coordinate. Below are a couple of articles from our 2015 legal battle against Judge Mahon.