SPJ co-authors legal brief supporting First Amendment right to record and publish livestreamed court hearings

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1/24/2024

CONTACT:
Ashanti Blaize-Hopkins, SPJ National President, ashanti.blaize@gmail.com
Andrew Geronimo, Case Western Reserve University School of Law First Amendment Clinic, andrew.geronimo@case.edu
Kim Tsuyuki, SPJ Communications Specialist, ktsuyuki@hq.spj.org

INDIANAPOLIS — The Society of Professional Journalists is urging a federal appeals court to protect journalists’ First Amendment right to photograph, record, and redistribute images of court hearings that are livestreamed for remote viewing.

In a legal brief joined by the National Press Photographers Association, SPJ asks the Sixth Circuit U.S. Court of Appeals to reverse a federal district court ruling from Michigan, which found that there is no constitutionally protected right to create and publish screenshots of court proceedings – even if the courts themselves televise the proceedings.

Although judges have been given latitude to exclude photojournalists from the physical courtroom on the grounds that cameras might be noisy or distracting, the same principle does not apply when a journalist, or other spectator, is recording the hearing in the privacy of a home or workplace, the brief argues: “By self-publishing the audio or video of a proceeding, the judge has conceded that there is no harm in letting the public listen and watch.”

The brief was filed Jan. 8 by attorneys Andrew Geronimo, Sara E. Coulter and Siobhan Gerber of the Milton and Charlotte Kramer First Amendment Law Clinic at Case Western Reserve University School of Law, who are providing pro-bono counsel to SPJ and NPPA.

The brief was filed in support of a Michigan lawyer, Nicholas Somberg, who is suing prosecutors for seeking sanctions against him after he took a screenshot of a hearing in which he was participating by Zoom and shared the image on Facebook. Prosecutors had initiated contempt proceedings against Somberg under a court rule that restricts the use of cameras inside the courtroom without the judge’s permission. A U.S. district judge threw out Somberg’s lawsuit, agreeing with prosecutors that the rule against cameras inside courtrooms applies equally to a livestreamed remote hearing. Somberg is asking the Sixth Circuit to reinstate his case.

SPJ and NPPA ask the appeals court to overturn the district court, which failed to require the government to demonstrate why it is legitimate to extend the courtroom cameras ban beyond the walls of the courthouse. The organizations argue that the ban is unconstitutionally broad, prohibiting the re-use of any images of courtroom video, even in cases of great public concern that involve no sensitive privacy issues.

“News media coverage of the courts serves an essential public-education function, enabling far more people than could ever sit in the courtroom to have the civic benefit of viewing the workings of the justice system for themselves,” the brief argues. “Video of judicial proceedings, whether broadcast by the news media or streamed directly by the court, provides the most complete record of what took place, rather than leaving the public to rely on second-hand accounts, the accuracy of which might be questioned.”

The case is Somberg v. McDonald, No. 23-01872.

SPJ promotes the free flow of information vital to informing citizens; works to inspire and educate the next generation of journalists; and fights to protect First Amendment guarantees of freedom of speech and press. Support excellent journalism and fight for your right to know. Become a member, give to the Legal Defense Fund or give to the SPJ Foundation.

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