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Sixth Circuit asked to allow recordings of Michigan livestreamed court hearings

Generally, judges are given wide discretion on what happens in their courtrooms, including whether proceedings are livestreamed or can be recorded.

(CN) — A Michigan attorney asked the Sixth Circuit to rule that Michigan courts cannot restrict the recording of court proceedings that are livestreamed.

In the wake of the Covid-19 pandemic, courts across the United States began to offer livestreams of in-court proceedings, which could be watched by the public using YouTube or Zoom.

Michigan Attorney Nicholas Somberg had a contempt motion brought against him for taking a screenshot of a courtroom livestream, and while eventually dismissed, it led to his filing of a lawsuit against then-Oakland County Prosecutor Jessica Cooper.

On Wednesday, a three-judge panel of the Sixth Circuit held oral arguments to hear Somberg’s appeal, which followed after a lower court ruled in favor of the government on grounds that he did not have a right to record a courtroom Zoom broadcast.

Philip Ellison, an attorney from Outside Legal Counsel PLC, represented Somberg at the proceeding and argued that once a judge decides to livestream its hearings, they cannot prohibit audio and visual recordings.

“I’m asking this court to recognize that when the government broadcasts information publicly, that they cannot, consistent with the First Amendment, limit or otherwise preclude the capture of that information, for the purposes of rebroadcasting, reusing, speaking positively, speaking negatively, being critical,” Ellison said.

U.S. Circuit Judge Alice Batchelder, a George H.W. Bush appointee, immediately asked, “What about altering?”

“That would go to whether it would be truthful communications,” Ellison said.

U.S. Circuit Judge Amul Thapar, a Trump appointee, asked Ellison if the answer from the courts shouldn’t be to simply limit access and not livestream proceedings.

“Your answer is though, give less access. If you want to protect the recording, give less access,” Thapar said. “I mean that is the answer you’ve given right, which is nothing more than the courtroom. Once the courtroom is full, too bad. Because as soon as you put it on video, it opens the whole world up.”

Ellison responded that the government’s interest is in preventing courtroom distractions.

“We don’t make less speech as the remedy to these problems, we should encourage more speech,” he said.

Brooke Tucker, an attorney representing current Oakland County Prosecutor Karen McDonald during oral arguments, said that Somberg lacked standing to sue her client.

“This case is about standing and a court policy. The plaintiff attorney in this matter wants to appear in court over zoom, take his own photos, his own video and then post them,” Tucker said. “The problem is that he sued the wrong person.”

Tucker argued that while the prosecutor is part of the process of court discipline, the correct defendant would be the court, later adding that everyone appearing before a court, even if by Zoom, should be subject to the court’s discretion regarding photographs.

“Can a state effectively muzzle speech by forbidding the creation of any record of the speech?” Thapar asked.

Tucker responded by saying that they could to an extent, but that in this case the court was not prohibiting the recording, simply exercising judgment on a case-by-case basis on what to allow to be recorded.

“It’s protecting the constitutional rights of the peoples whose rights in the courtroom are most important, that not being the attorneys,” Tucker said. “That being a child victim of sex trafficking whose on the witness stand. Plaintiff Somberg would have you allow him to set up a tripod and make his own recording.”

Ellison used his rebuttal time to stress to the judges that in his opinion the focus of the case is not about what happens inside the courtroom.

“This is not a because it touches the court, it is the court,” Ellison said. “This case is solely about what happens outside of the courtroom that is being broadcasted to the public, to the world at large.”

The three-judge panel also included U.S. Circuit Judge Andre Mathis, a Biden appointee.

The judges gave no timetable for a decision.

Categories / Appeals, Courts, First Amendment, Trials

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