PINAC Files Landmark Lawsuit Against Stubborn Judge

Andrew Meyer

PINAC Files Landmark Lawsuit Against Stubborn Judge to Establish “New Media” Right to Record in Florida Courtroom

Photography Is Not A Crime is filing suit against the State of Florida in a case that will not only establish a citizen’s right to record in courtrooms providing certain guidelines are met, but establish the legal definition of the media, specifically what the court is now referring to as “new media.”

It’s been an ongoing battle for months as PINAC has repeatedly tried to work with the demands of Jacksonville judges to be allowed to record the trial of one our correspondents, a right already established by state law.

But the latest judge in the case, Judge Mark Mahon, has once again moved the goal posts, now demanding an “Application for Media Authorization Card” that only applies to “New Media Organization[s].”

And this would require PINAC to provide egregious amounts of internal company information as well as pay for a third party analytics company to monitor our website, ostensibly to determine whether PINAC qualifies as media.

“Prove to us that you’re media. Show us your documents and pay for the privilege of showing us your documents. Do all that, and then maybe I’ll let you record a public trial.”

That is the essence of what Florida’s Fourth Judicial Circuit told PINAC as we tried to record the trial of correspondent Michale Hoffman. The issue was covered by the Florida Times-Union, the largest newspaper in North Florida.

Hoffman’s case first went to court on his motion to dismiss a dubious trespassing charge on October 24, 2014. At that hearing, PINAC reporter Thomas Covenant was there to cover the trial. The trial court did not interfere with Covenant’s right to record the hearing, but warned him that he was required to provide advance notice to record next time, pursuant to a court order.

But then the court decided that advance notice was not enough.

Prior to Hoffman’s second court hearing, PINAC’s Thomas Covenant notified court administrator Joe Stelma of his intent to record future court proceedings in the case. But the court claimed the notice was insufficient to comply with the court’s order, and said Covenant would be required to obtain court issued media credentials prior to any further recording in the courtroom.

On January 26, at a pretrial hearing, PINAC was told that upon obtaining media credentials, PINAC would be allowed to video record any future proceedings in the Hoffman matter.

Later that day, PINAC’s attorney Eric Friday delivered letters to Judge Mahon; Stelma; Caroline Emery, attorney for the Fourth Judicial Circuit; and Larry Hannan, chair of the circuit’s Media Committee, requesting court issued media credentials for PINAC, which was already burdensome considering Florida allows cameras into courtrooms as long as certain guidelines are followed, which we always do.

Hannan responded that media credentials were not issued by the committee for “regular everyday trials,”and explained in a letter that unless the case was identified by the court as being of extraordinary public interest, no credentials or permission from the Media Committee was necessary.

And no other news agency, besides PINAC, is interested in Hoffman’s trial.

On February 3, 2015, PINAC informed the counsel for the state of Florida of Mr. Hannan’s response and again requested the judge to allow PINAC to video the trial.

The judge issued an order on February 12, 2015, again denying PINAC permission to video the Hoffman matter, but allowing PINAC to file a motion no later than March 2, demonstrating that we met the definition of “new media. ” We filed our motion on February 17.

On March 5, 2015, the Fourth Judicial Circuit issued yet another administrative order, stating that in cases not of extraordinary public interest, not only would court issued media credentials be required to video court proceedings, but to obtain these media credentials the applicant would have to submit an “Application for Media Authorization Card”, along with all proof requested in the application, and any additional information that might be requested by Court Administration.

The application, created by the court after entering this order, applies only to “New Media Organization[s],” and requires extensive background information including copies of prior coverage, proof of the number of monthly visits, proof that the “individual” has covered the judicial branch for the preceding six months, the number of staff on the employing entity’s payroll, the number of staff employed, the type of employment, and information regarding how correspondents are paid.

The application also requires that the applicant submit to pay a fee for the issuance of the credentials on a yearly basis, and a second fee to a third party company to provide analytics results required by the application to track who visits our site and certify results. In order to obtain the necessary “certifiable” analytical data required by the Third Administrative Order, PINAC would be required to expend no less than $150.00 to a third party to monitor its website for three months.

These laughable terms provided by Florida’s Fourth Judicial Circuit are in no way founded in law, and are designed to limit the public’s right to record inside a courthouse, shielding judges and prosecutors alike from transparency in the YouTube era.

As our attorney Eric Friday wrote in his emergency petition,

“The Florida Supreme Court has adopted a three-pronged test before a
court can close judicial proceedings from the public:

  1. Closure is necessary to prevent a serous and imminent threat to
    the administration of justice;
  2. No alternatives are available, other than change of venue,
    which would protect a defendant’s right to a fair trial; and
  3. Closure would be effective in protecting the rights of the
    accused, without being broader than necessary to accomplish this
    Miami Herald Pub’g Co. v. Lewis, 426 So. 2d 1 (Fla. 1983).

Barring cameras – from “new media” only – is the 21st Century version of closing a judicial proceeding from the public. In Lewis, the creation of prejudice against the defendant was the concern over media coverage. Now the Fourth Circuit is instead trying to limit the First Amendment right to record to old media corporations who are not in business to stream any gross miscarriages of justice across the internet.

Another excerpt from Eric Friday’s emergency petition:

A trial is a public event, and there is no special prerequisite of the judiciary which enables it to suppress, edit or censor events which transpire in proceedings before it, and those who see and hear what transpired may report it with impunity, subject to constitutional restraints mentioned herein.” Miami Herald Pub’g Co. v. McIntosh, 340 So. 2d 904, 908-09 (Fla. 1977)
The Court has chosen to prohibit PINAC from video recording the trial of Hoffman without any finding to support its requirement that PINAC is not media or needs to provide additional information to demonstrate that it is “media”. Petitioners have filed this Emergency Petition in light of the continuing denial of access to PINAC, and the history of restrictions on the press in the Fourth Judicial Circuit.
The trial court and the circuit have disregarded the law of Florida related to access to Florida’s courts. The First and Fourteenth Amendments to the United States Constitution guarantee the public the right to attend a criminal trial. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 (1980).
No evidence has been presented from which the trial court could conclude that there was an overriding interest that is likely to be prejudiced. Counsel has been unable to find any recent Florida case allowing for the exclusion of video recording, unless necessary to protect the rights of the accused.
In this case, Mr. Hoffman, the Defendant below, is joining petitioner. As in Moore, Mr. Hoffman desires a fully public trial, including allowing the media to cover the proceedings.

For our readers fired up about the importance of the right to record, especially at a public trial, now would be an excellent time to help with with our legal fees and donate to our non-profit.

For the last word, below is a video of Michale Hoffman, the man whose trial we intend to record.


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