united-states criminal-law constitutional-law recording public-records
Constitutionality of outlawing recording of court proceedings in the United States
<p>In the United States courts seem to be supposed to be public proceedings. For example, if a criminal trial is going on, I believe in most cases I cannot be prevented from entering that room and watching and listening to the proceeding, presumably because they are &quot;public&quot; proceedings. However, the legal basis for this is not clear to me.</p>
<p>This question about the legal basis for law proceedings being public has become more trenchant now in the COVID era because many court proceedings are being held by telecast now. Before a judge could just physically grab and expel anybody trying to record the goings on in a court, but now that trials are being webcast, anyone can simply record the webcast. Some courts, like those in New Hampshire, have threatened to criminalize doing this and cite <a href="https://www.courts.state.nh.us/rules/crimpro/crimpro-VIII-35-53.htm#r46" rel="nofollow noreferrer">state laws allegedly outlawing recording court proceedings</a>.</p>
<p>What is the constitutionality of such laws? Is the public nature of courtroom proceedings at the whim of the state, or is there is a constitutional protection of public access to trials in public courts?</p>

<h2 id="yes-there-is-a-right-clgu">Yes there is a right</h2>
<p>For civil trials it is not a Constitutional right, it’s a Common Law one. Civil trials in the USA are public because trials in England were (and are) public.</p>
<p>For criminal trials, the sixth amendment guarantees “speedy and public” trials.</p>
<p>But, like all rights, it is not unfettered.</p>
<p>In addition to practical considerations like how much room there is for a public audience, there are also trials or parts of trials from which the public is excluded. Family law and children’s court matters are almost always not public. Similarly, trials that deal with national security issues.</p>
<p>The limitation on the right to public access must be balanced with issues such as privacy and security. While Constitutional rights are subject to “strict scrutiny” on limitations the same is not necessarily true of Common law rights, however, for such a longstanding right it would come close.</p>
<p>As for recording trials: there is no right to do so other than by taking notes. Unsurprisingly, there is no specific right in the Constitution for audio or visual recording because the technical ability to do so post-dates the Bill of Rights by about a century. Therefore there is no Constitutional right or Common law right. Most courts can allow or disallow recordings at their discretion.</p>

<p><a href="https://www.courts.state.nh.us/rules/crimpro/crimpro-VIII-35-53.htm#r46" rel="nofollow noreferrer">New Hampshire Rule of Criminal procedure</a> 46 only says that one can photograph trials under certain conditions &quot;Except as otherwise provided by this rule or by other provisions of law&quot;, which is standard disclaimer subordinating the restriction to other laws or the remainder of the rule, it does not imply that there exists any general state law against recording. The court cannot &quot;criminalize&quot; on its own, but (<a href="https://casetext.com/case/state-v-martina-4" rel="nofollow noreferrer">State v. Martina</a> and references therein) acknowledge &quot;the inherent criminal contempt authority vested in New Hampshire courts&quot;. Violating court rules can thus result in fines, just as illegal parking can result in a fine. Your question appears to focus on the prohibition, and not the criminal record issue.</p>
<p><a href="https://supreme.justia.com/cases/federal/us/449/560/" rel="nofollow noreferrer">Chandler v. Florida</a>, 449 U.S. 560 holds that &quot;This Court has no supervisory jurisdiction over state courts, and, in reviewing a state court judgment, is confined to evaluating it in relation to the Federal Constitution&quot;, and in general does not take up a suggestion that <em>allowing</em> broadcast coverage of trials. Quoting the prior ruling from the Florida Supreme Court, &quot;Nor does the Sixth Amendment require that the trial -- or any part of it -- be broadcast live or on tape to the public&quot;, thus the issue is not (as seen at the time) a US Constitutional one.</p>
<p>A First Amendment theory has gained traction, see <a href="http://www2.ca3.uscourts.gov/opinarch/161650p.pdf" rel="nofollow noreferrer">Fields v. Philadelphia</a>. It is uncontroversial that expressive acts are protected, but it has also been argued that photographing is sufficiently expressive (e.g. the instant case). The 3rd Circuit court agreed with the other odd-numbered circuits &quot;that there is a First Amendment right to record police activity in public&quot;. The opinion reasons in §4 based on the future expressive value of photographs. Photographs are an essential component of the future expression. However,</p>
<blockquote>
<p>We do not say that all recording is protected or  desirable.   The
right to record police is  not  absolute.   “[I]t is  subject  to
reasonable  time,  place,  and  manner  restrictions.”   Kelly, 622
F.3d at 262</p>
</blockquote>
<p>The New Hampshire rules are a statement of what those reasonable restrictions are, up to the point of judicial discretion to determine that photographing would be disruptive.</p>
<p>SCOTUS has not declared a First Amendment right to photograph court proceedings, but the potential for such a finding is evident, based on the right to photograph police.</p>
