Michigander Asks Justices to Toss Court Cellphone Ban

(CN) – A Michigan man who was banned from recording court proceedings on his iPhone filed a petition to take his legal battle to the U.S. Supreme Court.

The case, which is based on Saginaw County, Michigan’s ban on all recording devices in courtrooms, was dismissed by the Sixth Circuit in May of last year.

Robert McKay argued the ban violates citizens’ First, Fifth, and 14^th Amendment rights, but the Cincinnati-based appeals court sided with the county, ruling that McKay failed to prove any injury or “credible threat of prosecution.”

McKay criticized the decision in a petition to the Supreme Court filed Monday.

“Recording and disseminating court proceedings serves the cardinal First Amendment value of protecting and promoting the free discussion of government affairs,” the petition states.

Saginaw County’s policy does allow judges to exempt certain individuals from the ban, but McKay never applied for an exemption.

McKay claims that the “mere ‘existence of a statute implies a threat to prosecute,’” and that the Sixth Circuit was wrong to require him to prove a history of enforcement. (Emphasis in original.)

He cited the 2014 Supreme Court case Susan B. Anthony List v. Driehaus, and said it “reaffirmed that a plaintiff has standing to request pre-enforcement review of a statute or regulation when circumstances ‘render the threatened enforcement sufficiently imminent.’”

“The Sixth Circuit’s decision conflicts with several other circuits that have declined to require any ‘plus’ factors to prove a credible threat of prosecution when a plaintiff seeks pre-enforcement review of an allegedly unconstitutional statute or regulation,” according to his petition.

While he admitted that a citizen’s right to record court proceedings has limitations, McKay cited the 1984 Supreme Court case Press-Enterprise Co. v. Superior Court as proof that such limitations must be narrowly tailored to serve a specific public interest.

McKay stressed that a blanket ban like the one implemented by Saginaw County is “certainly not narrowly tailored.”

“There are numerous intermediate steps that could be taken to prevent potential problems such as electronic noises disrupting proceedings, alleged witness intimidation, and the like,” he says.

McKay concluded his petition by arguing that his case is “an ideal vehicle to resolve the pre-enforcement standing conflict … [and] whether, in this age of electronic media, the First Amendment protects the right to record public courtroom proceedings as well.”

It is unclear when the Supreme Court will decide whether to take up the case.

McKay is represented by John J. Bursch in Caledonia, Mich.

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