A Hawaii judge had a woman forcibly removed from a courtroom and arrested for video recording last month, raising the question as to whether courtroom recording laws need to be updated to keep up with today’s technology where everybody has a recording device.
Hawaii court rules permit photography and videography but only if a written request is made ahead of time, which Sherri Kane and her partner, Leonard Horowitz, evidently did not make.
At 1:15 in the video, Judge Bert Ayabe, who was presiding over a foreclosure hearing, apparently spotted Horowitz recording, so he said, “let me advise the gallery that all electronic devices shall be turned off. If there is anything that anyone that doesn’t comply with this, shall be removed from the courtroom.”
A Department of Public Safety deputy then pointed Horowitz out to another deputy, who ordered him to leave, which he did, but not before handing the camera to Kane, who continued recording.
She refused to leave, demanding deputies to state what law forbids them from recording. Another court official stepped in and cited the rule number, but did not go into detail about it, simply stating that it forbids all electronic devices, which is not exactly true as you can read here.
The rule not only requires a prior written request, but restricts the courtroom to only one still and one video photographer, who are expected to serve as the pool photographer for other photojournalists.
In Florida, the rules are much laxer, simply requiring a verbal consent from the judge at the commence of the hearing, as I proved last year when Marc Randazza was in town defending a blogger as well as during my last trial.
But even then, the judge might have an issue with somebody recording from a gallery without announcing their intentions beforehand, which would give all parties a chance for that request to be denied, although in Florida, it would take a lot for that request to be denied.
I would recommend learning the court rules from your own state through this website in case you want to record a hearing, just to see how they approach the situation because this is a matter where citizens can get more involved in ensuring government transparency.
Mickey Osterreicher, general counsel for the National Press Photographers Association and a longtime advocate for recording in the courtroom, who is included in this long and detailed history of cameras in the courtrooms, stated the following in an email:
Unfortunately the courtroom is not the same as a public street even though the public is allowed to attend. As you noted every state has its own rules regarding cameras in the courtroom. There are still a few states where it is banned entirely and there are no cameras allowed in federal court during criminal trials. They are barred from the US Supreme Court.
The overriding reason is that the courts want to ensure that nothing infringes upon a defendant’s Sixth Amendment right to a fair trial. Once again if everyone was allowed to photograph & record it might interfere with courtroom decorum, be distracting and thus negatively impact the fair administration of justice.
It is also interesting to note that courts are having to come to grips with people live blogging and tweeting from the courtroom. Some courts allow electronic devices capable of doing this others don’t.
Maybe one day everyone be permitted to record court proceedings but for now trials are deemed open when the public is allowed to attend and state limitations on cameras in the courtroom have been viewed as reasonable time, place and manner restrictions, especially when weighing the First Amendment rights of the press and the public against the Sixth Amendment rights of a defendant.
Kane and Horowitz argued that the court rule is simply policy and not a law. However, it still would not override the First Amendment, according to Osterreicher.
It is not a law but as in most states the courts promulgate their own rules (as opposed to a legislature which enacts laws). Once again this keeps the three branches of government separate.
The First Amendment would not necessarily override the rules of the court because I don’t believe it could be successfully argued that the rules restrict more speech than is necessary to achieve the governmental purpose of keeping order in the court and ensuring a fair trial.
Below is Kane’s description of the incident from her video. She further elaborated on her website.
On September 10, 2013, I attended a hearing with Anthony Williams for a woman who was a victim of foreclosure fraud and organized crime. Dr. Horowitz was filming Williams for a documentary, and Judge Bert Ayabe and the sheriffs made Horowitz leave the court because they did not want the corrupt proceedings videotaped as evidence. Then Leonard handed me the camera before he left.
The camera was still running when Williams and I asked the question about “WHAT LAW” prohibits journalists from videotaping public courtroom hearings, and the sheriffs could not answer the question.
Then the Court Clerk stated, “State Supreme Court Rule 5,” but Williams and I knew that was no law, just an administrative rule that violates independent journalists First Amendment Rights as a way to control information, the media, and ultimately the way people think and behave like slaves.
In other words, these “rules” diminish our freedoms, and violate our Constitution, civil rights, civil liberties, and much more.
The courts and the States must bring their administrative rules in line with Federal laws and common laws in order to be lawful and have officials not violate their oaths of office.
I was on my way out of the courtroom after Dr. Horowitz exited when the judge told the sheriffs to remove me. I was then suddenly attacked and assaulted by two security guards four times my size and weight! They twisted the camera out of my hand, twisted my arms, made me fall down, then dragged me out of the courtroom. They threw me out in the hallway in front of a dozen witnesses.
Officers K Kim and D YanagiThe two sheriffs are shown here (K. Kim [left] and D. Yanagi in plain clothes [right]) demanded that I leave the courthouse after they assaulted me and I was in a great deal of pain. But someone called the paramedics to examine me. They saw my bruises, and recorded the damage from the excessive force used to follow the judge’s unlawful instructions to have me removed.
The sheriffs’ supervisor, Sargeant M. Murota, refused to take witness testimonies and claimed that there were no witnesses! Thank God people videotaped each others’ testimonies on their cellphones!
After the sheriffs saw how many witnesses there were, and my bruises, they needed an alibi, so they decided to arrest me for “disrupting government ops.” when, in fact, my video shows I was very orderly. I had never been arrested before that moment.
UPDATE: Kane sent Photography is Not a Crime a document she said she filed the day prior to the hearing where she was asking the court to allow them to record, but they evidently ignored it. The document is not stamped to indicate it was received, but she said he faxed it.
The court rules state that the requests to record must be filed within a “reasonable time,” but they don’t define what this could be, so I would imagine they would argue that 24 hours is not a reasonable time to pick up the phone and call the parties involved to notify them of the request.
This rule obviously hinders the media if they decide at the last minute they want to cover a hearing, so it should be scratched.
After all, having gone through this situation twice, it only takes a few minutes to notify all parties that someone wishes to record the proceedings.
1) All requests for extended coverage shall be made by the media or educational institution to the coordinator a reasonable time in advance of the commencement of the extended coverage. “Reasonable time” as used herein shall mean the period of time required for all parties to be notified in advance, shall consider the realities of court scheduling, and shall be the minimum time required to accomplish such notification.
(2) Requests for extended coverage shall be made in writing on a form provided by the Judiciary and shall refer to the individual case with sufficient identification to assist the coordinator in providing the required notice. Such requests may be filed with the coordinator in person, by mail, or by facsimile transmission. Requests for extended coverage shall relate to an entire case. Once application is made for extended coverage for any case, that application shall apply through the final judgment and any post-judgment motions and appeals.
(3) Upon receipt of the written request, the coordinator shall in turn expeditiously notify, in person or by telephone, counsel for all parties or the parties themselves if represented pro se and the presiding judge (or if the presiding judge has not yet been determined, the appropriate administrative judge).
(4) Only one written request shall be necessary for any given case; once application is made, all media are considered to have applied, i.e., if a television station makes application, newspaper coverage is included and vice versa.