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West Virginian challenges ban on recording legislative debate

A lawsuit filed by the ACLU claims a West Virginia Senate policy prohibiting the use of cameras violates the First Amendment and the state’s open-meetings law.

CHARLESTON, W.Va. (CN) — The debate over abortion access in West Virginia has spawned a civil suit over the public’s ability to record lawmakers discussing the issue.

State Senate President Craig Blair, R-Berkeley, is named as the lead defendant in a free-speech lawsuit filed by Tiffani Morgan Walton. In her suit filed Monday afternoon in Charleston federal court, the 28-year-old resident of Frankford in Greenbrier County alleges Blair and West Virginia Capitol Police officers not only violated her First Amendment rights, but also the state open-meetings law when they stopped her from recording debate on a bill to ban abortions before escorting her out of the Senate gallery.

Republican Governor Jim Justice on July 25 amended a special session originally meant for tax reform to include modernizing the state’s abortion law after the U.S. Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Center overturning the federal right to abortion established in Roe v. Wade

A week earlier, a Kanawha County Circuit Court judge granted an injunction by the Women’s Health Center in Charleston – the state’s only provider of abortions – halting enforcement of an 1849 law making it a felony punishable of by three to 10 years in prison for any person “to produce abortion or miscarriage” except when “done in good faith, with the intention of saving the life of such woman or child.”

According to her complaint filed by attorneys with the ACLU of West Virginia, Walton came to the state Capitol on July 29 to watch the Senate debate two bills passed by the House of Delegates regarding personal income taxes and abortion. Under the House-approved bill, abortions would be outlawed, with certain exceptions, and anyone performing them would face criminal penalties.

Upon entering the gallery around 12:30 p.m. that day, Walton was informed by one of the doorkeepers that once the Senate came to order, the use of cameras would be prohibited. Inside the chamber, a sign taped to the ledge in the gallery’s front row prohibited “leaning on railing” and “no flash photography” but didn't say anything about filming.

During a recess, ACLU attorneys notified Blair via email that recording of the Senate’s proceedings is permissible. In its message, the civil rights group referenced a 2019 state ethics commission advisory opinion to the city of Winfield that said prohibiting citizens from recording council meetings was a potential violation of the Open Governmental Proceedings Act as the "use of recording equipment does not constitute undue interference under the Act simply because the public is operating it.”

Walton says the Senate reconvened around 2:30 p.m. and began debate on the personal income tax bill.  It was not until 90 minutes later that senators began debating the abortion bill, known as HB 302.

Around 4:30 p.m. Walton began recording the debate from her seat in the Senate gallery with her cellphone.  Almost immediately, Grover Miller, an assistant sergeant-at-arms, ordered her to stop recording, according to her lawsuit.

Despite informing him of the ACLU's message to Blair, Miller allegedly remained steadfast that Walton stop recording the debate and ordered her out of the gallery and into the hallway.  There, while continuing to disagree with Miller about recording the abortion debate, Walton says she was approached by an unspecified number of Capitol Police officers.

Walton claims she then began recording her interaction with officers.  When she asked why she was ordered to leave the gallery, Corporal Van Armstrong allegedly replied, “Because you’re interrupting.”

When asked how she was disturbing the debate when it was being livestreamed and senators had their phones out, Armstrong said she was breaking the rules, according to the lawsuit.

“You are disturbing…because you are not following the rules,” Armstong is quoted as saying in the complaint. “This is only public if you follow the rules.  If you can’t follow the rules then you’ll have to excuse yourself.”

As she was talking with Armstrong and the other officers, Walton says Chief Kevin Forman arrived with four more officers.  Upon arrival, Forman is said to have given her an ultimatum to either go down to the upper rotunda outside the Senate chambers where many others were gathered or risk removal from the Capitol.

“You can go outside the [Senate] chamber at the bottom of the steps.” Forman allegedly said. “You can do that, or you'll be out of the building. You choose.”

According to the complaint, Armstrong laughed when Walton replied, “I have a right to record public process. I know my rights.”  When she asked if he found her comment funny, Walton says Armstrong replied, “Yeah.”

Shortly thereafter, Walton claims Forman and three other officers escorted her downstairs to outside the closed doors of the Senate chambers. 

Along with monetary damages for constitutional violations, Walton seeks both an emergency and permanent injunction enjoining Blair and the Capitol Police from prohibiting the public from recording future proceedings.  The emergency injunction is necessary, she says, since HB 302 stalled after the House and Senate could not reach an agreement on the bill’s language and it is likely to be considered by a conference committee at the upcoming interim session Sept. 11-13, if not sooner.

Blair, who is also the state’s lieutenant governor, did not immediately respond to a request for comment.

Walton is represented by ACLU of West Virginia attorneys Loree Stark and Nicholas Ward.

Ward said in a statement Tuesday the law is clear that citizens "have every right to record public officials during public proceedings."

"Sunshine laws lie at the very heart of our democracy,” he said. “Without transparency, government cannot be held accountable by the people it serves. That’s why we’re also asking a court to remind politicians at the state Capitol of their responsibility to uphold and protect transparency laws.”

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