In January 2012, the Illinois Supreme Court entered an order that “authorized on an experimental, circuit by circuit basis” the use of “extended media coverage” in Illinois trial courtrooms. A seven-page policy statement attached to the order provides the blueprint for implementation of audio-visual recording and broadcast of trial court proceedings. As of September 2013, the judges of 35 Illinois counties have approved the use of extended media coverage.
Appropriately, the official policy vests the trial judge with “broad discretion” over nearly every aspect of extended media coverage, from whether to prohibit coverage outright, to whether to permit media personnel to install increased-wattage light bulbs into existing courtroom fixtures (as one of many “technical” guidelines intended to limit distractions, the policy prohibits the use of any artificial lighting not already existing in the courtroom).
Although the trial judge enjoys broad discretion over most matters, the supreme court’s policy specifically prohibits “the rights of extended media coverage” to anyone other than “established news gathering and reporting agencies and their representatives whose function is to inform the public.” The supreme court’s practical reasons for adopting this rule are understandable. The inconvenience of allowing people to operate audio and visual recording devices in a proceeding is lessened by entrusting that task to a professional entity that knows what it’s doing. The rule also provides the most bang for the buck by ensuring that the entity providing coverage will use its established channels of communication to broadcast the footage to a wide audience, so as not to render the hassle of cameras all for naught.
However, the question must be asked: why did the supreme court see fit to expressly limit the right of extended coverage to “established news gathering and reporting agencies”? With the trial judge vested with broad discretion to control the means of coverage and/or deny coverage outright (a decision that “is not appealable”), what is the supreme court worried about happening if those not “established” in the news media are allowed to make audio and video recordings during proceedings? Does the supreme court not trust trial judges to determine for themselves whether an applicant will cause problems if allowed to provide coverage?
I’ll use myself as an example. I am an attorney licensed to practice law in the State of Illinois and I operate a legal blog. Since April of this year, I have been electronically publishing writings about things happening in Illinois courtrooms. I also own a digital camcorder, a 64 gigabyte SD card, and a tripod. If I were to apply to provide extended media coverage, the trial judge (hopefully) would trust that I could do so without causing a disturbance in the courtroom. (For the record, I would have no desire to spend my afternoons doing this.) So why then has the supreme court specifically limited trial judges to allowing coverage only by established news agencies?
I suspect the limitation on those who may provide extended media coverage, like most of the provisions of the supreme court’s policy, is rooted in practical administrative concerns. But it creates the appearance of viewpoint discrimination when the policy allows only the established media to make courtroom recordings, which then provide the basis for publication and editorial commentary—the sine qua non of freedom of the press and freedom of speech. By limiting the right to gather information to the established media, the supreme court may also be limiting the first amendment right to publish documentation of, and comment upon, the happenings within Illinois courtrooms (because the policy does nothing to limit the applicability of copyright law, the news agency making the recording presumably has the exclusive right to broadcast the recording).
Although I see it as unlikely, the supreme court’s policy just might find itself challenged in a federal civil rights action by a well-resourced blogger who wants to broadcast and comment upon footage of courtroom proceedings, perhaps one for which the “established” media has been permitted access. There would be many hurdles to bringing such an action (e.g. standing), but stranger things have happened.
As a final piece of food for thought, consider Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 578 (1980), in which a plurality of the United State Supreme Court observed that “a trial courtroom is a public place where the people generally—and representatives of the media—have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place.”
* This blog post is a reprint of my article in the October 2013 newsletter of the Illinois State Bar Association Human Rights Section Council.