LoMonte and Jones on “Any Rebroadcast, Retransmission, or Account of this Trial Without the Express Written Consent of the Judge is Prohibited”: The First Amendment and Judicial Constraints on Redistributing Courtroom Video

Frank LoMonte, University of Georgia School of Law; University of Florida Levin College of Law, and Rachel Jones, Bryan Cave Leighton Paisner LLP, have published “Any Rebroadcast, Retransmission, or Account of this Trial Without the Express Written Consent of the Judge is Prohibited”: The First Amendment and Judicial Constraints on Redistributing Courtroom Video. Here is the abstract.

Courts are notoriously camera-shy institutions. Although the Supreme Court has recognized the essential public nature of trials, photography and videography have long been forbidden in federal courts. And while state courts are somewhat more camera-friendly, there is no legal right to insist on audiovisual coverage, which is left to each trial judge’s discretion. Many courts acceded to allowing real-time video streaming only when the COVID-19 pandemic made it risky to assemble people face-to-face in confined spaces. Nevertheless, even courts that continue, post-pandemic, to provide video of their proceedings commonly dictate – either by judicial decree or by court rule – that their video and audio feeds may not be rebroadcast in any way. A typical example appears in California, where rules against recording trial-court proceedings from the courtroom have been expanded to forbid recording or sharing “any portion” of a livestreamed proceeding without court approval, under threat of contempt sanctions. The inability to re-share video that judges have themselves decided can be harmlessly shown to the public hampers the ability of journalists and commentators to offer the most authentic account of courtroom events. As “virtual” proceedings become more routine, the question will increasingly arise: Can a judge assert the same authority to prohibit at-home recording that applies within the courtroom without running afoul of the First Amendment, which strictly prohibits broad “prior restraints?” What rationale could override First Amendment protections, when the court itself has already deemed the livestream appropriate for public viewing? The Fourth Circuit recently became the first to confront the issue of a “right to rebroadcast,” siding with a podcaster who sought to air tapes of a newsworthy trial. But a district court in Michigan reached a different result, in a case now being appealed to the Sixth Circuit. The authors examine each of the cases in light of the First Amendment’s disfavor for ill-tailored rules that prohibit speakers from disseminating information they have obtained lawfully. Drawing on decades’ worth of Supreme Court caselaw that narrowly limits judges’ authority to impose “contempt by publication” sanctions on nonparties, the authors contend that a blanket prohibitions against using any portion of a court-broadcast video runs afoul of the First Amendment – and cannot be justified by assertion of copyright, without (at minimum) making allowances for the “fair use” of video footage for statutorily recognized purposes. Prohibiting the re-use of courtroom video, the authors conclude, not only is unlawful but is counterproductive public policy, undermining public understanding of the judiciary at a time of historically low levels of trust in all government institutions.

Download the article from SSRN at the link.