Ban on Note-Taking by Spectators in Court

The Daily Times Herald (Iowa) reports:

District Judge James Richardson forbade a Daily Times Herald reporter from taking notes at a vehicular homicide trial Tuesday in Audubon, a rare courtroom rule that some say is unconstitutional.

Richardson said a reporter’s scrawls could “influence the jury in that they might think something is important if they see me writing,” reporter Jared Raney said….

Raney said judge Richardson told him to file an expanded media request — which is commonly required to use cameras, camcorders and other electronic devices in Iowa courtrooms — if Raney wanted to take notes on paper. Such requests often take more than a week to gain approval, which would likely happen after the Audubon trial concludes for Kendall Ware, 57, of Lineville, who is accused of killing a boy in a 2011 drunken-driving crash.

Seems like an odd rule, though it is one that the Supreme Court enforced until 2003 as to public spectators (not, to my knowledge, those in the special press area). Coco v. Richardson (N.D. Ill. 2006) suggested that a similar rule was unconstitutional, and I think the analysis there makes sense:

Judge Coco’s main argument is that her inherent power to maintain the order and decorum necessary to insure the proper administration of justice authorizes her to forbid an observer from taking notes while court is in session. Her rule presents a serious constitutional issue.

A sweeping prohibition of all note-taking by any outside party seems unlikely to withstand a challenge under the First Amendment. In the closest analogous case, United States v. Columbia Broadcasting System, Inc., 497 F.2d 102, 107 (5th Cir.1974), the court of appeals struck down a ban on courtroom sketching, saying “[w]e are unwilling to condone a sweeping prohibition of in-court sketching when there has been no showing whatsoever that sketching is in any way obtrusive or disruptive.”. Taking notes is undoubtedly less obtrusive than sketching. While the Seventh Circuit has never had the need to address the issue directly, in upholding a prohibition on cameras in the courtroom the court noted that “cameras are qualitatively different from reporters’ notetaking and sketching.” United States v. Kerley, 753 F.2d 617, 621 (7th Cir.1985).

The right of access to public trials and other court proceedings is required by the First Amendment to the Constitution, because “[p]ublic scrutiny of a criminal trial enhances the quality and safeguards the integrity of the fact-finding process, with benefits to both the defendant and to society as a whole.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982). “Thus to the extent that the First Amendment embraces a right of access to criminal trials, it is to insure that this constitutionally protected ‘discussion of governmental affairs’ is an informed one.” This right is a presumption of “constitutional magnitude” which extends to civil cases as well as criminal proceedings. In the Matter of Continental Illinois Securities Litigation, 732 F.2d 1302, 1308 (7th Cir.1984).

A total denial of access to a trial must be necessitated by a compelling governmental interest and narrowly tailored to serve that interest. The case at bar does not involve a total denial of access, but rather a limitation placed by the defendant on the right of access. That limitation must still withstand scrutiny for its neutrality and reasonableness.

In our society, starting no later than junior high school, students are taught and expected to take notes at lectures, seminars, and in libraries so that they may have the ability to revisit what they have heard or read. This allows them more fully and accurately to evaluate and communicate the subject matter. Notes are taken to insure accuracy. The defendant’s rule interdicts all who quietly take notes at a public trial, be they teachers, students, lawyers representing non-parties who may have similar interests, and courtroom monitors and, evaluators of judicial performance representing public interest groups, or simply interested members of the public. A prohibition against note-taking is not supportive of the policy favoring informed public discussion; on the contrary it may foster errors in public perception.

The United States Supreme Court, which formerly had a policy against notetaking during oral arguments, dropped that rule and now permits non-parties to take notes. At last report, all of the appellate tribunals mentioned in [an article that “that none of the thirteen United States Courts of Appeals bans note-taking by members of the general public; nor does the highest court of any state, or of the District of Columbia”] were still functioning in an ambience of order and decorum. Note-taking has not transformed their proceedings into Saturday night fraternity parties. The same holds true for the federal district courts; I am not aware of any federal district court that has a rule or order limiting the right of the press or anyone else to take notes during a public criminal or civil trial.

The defendant’s position is that the right to attend trials is merely a right to be present, to observe and to listen. She argues that plaintiff, especially, has no right to take notes in her courtroom because he is not even a member of the media. However, the right of the press to access court proceedings is derivative of the public’s right, and inside the courthouse, the press has no greater rights than those of the general public. Nixon v. Warner Communications, Inc., 435 U.S. 589, 609 (1978).

The defendant’s blanket policy against note-taking cannot be justified on the grounds that domestic violence cases often involve “highly emotional parties”, “outbursts”, and the disclosure of “sensitive information regarding parties and witnesses.” The same may be said of many types of cases, equally volatile, that are routinely reported in the press based on notes taken in the courtroom. Nor is the ban the only way to insure the maintenance of “an orderly, dignified environment.” This is the same type of conclusory statement that the Supreme Court rejected in Press-Enterprise Co. v. Superior Court of California for Riverside County, 478 U.S. 1, 15 (1986) (rejecting prejudicial pretrial publicity as a rationale for ordering closure of a suppression hearing) (“The First Amendment right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of [the right to a fair trial]. And any limitation must be `narrowly tailored to serve that interest’ …”)….

The motion to dismiss the claim of violation of a First Amendment right of access to judicial proceedings for legal insufficiency is denied.

Thanks to the Media Law Resource Center MediaLawDaily for the pointer.