Florida's proposed courtroom news coverage rules draw opposition from journalists, media lawyers

Experts from the journalism and legal fields are urging the Florida Bar to retreat from proposed rules giving judges wide authority to restrict spectators' use of laptops and recording devices in state courts.

A set of proposed rules released by Florida's attorney-regulating body Jan. 1 has alarmed First Amendment advocates. As circulated, the rules would enable judges to ban, or confiscate, any type of electronic device -- including a laptop, camera, or audio or video recorder --  in a courtroom if the judge deems it necessary "to prevent disruption" or "to preserve the orderly administration of justice."

"Professional journalists" would be exempted from the proposed rule, and their use of recording devices would be subject to less-restrictive existing standards in the Florida judicial rules (i.e., no recording or broadcasting of private conversations between parties and their legal counsel).

A significant problem is that the proposal derives its definition of "professional journalist" from Florida's flawed reporter's privilege law. That law enables journalists to refuse demands to disclose confidential news sources and unpublished newsgathering materials -- but only if the journalists are paid professionals. That, of course, excludes most student journalists as well as amateur bloggers and other citizen journalists.

A coalition of media groups wrote to the Bar urging withdrawal or revision of the rules, which were drafted at the instigation of the Florida Supreme Court. Said the Feb. 1 letter from the Reporters Committee for Freedom of the Press, Florida Press Association, Florida Association of Broadcasters and the Florida First Amendment Foundation:

Press credibility cannot be maintained when members of the public and media are dependent on the judge’s unbridled discretion on banning devices. The rule as written is of special concern in light of today’s fast-moving digital world where 'traditional' media is difficult – if not impossible – to define, has many moving parts, and certainly cannot be limited to salaried journalists as defined in the shield law.
The rules seem ironically counterproductive to the fine work being done by Miami lawyer Stephen Zack, who has made improving civics education the cornerstone of his year-long term as national president of the American Bar Association. When improving public knowledge of the workings of the legal system is a national priority, any rule that dissuades student journalists from spending time at the courthouse must be viewed skeptically.

Journalists' use of technology in the courtroom has special resonance in Florida, where a Jacksonville newspaper won a high-profile legal victory in January 2010 allowing a reporter to live-blog a murder trial over the trial judge's initial objection. Florida's 1st District Court of Appeals ruled that regulations meant to minimize disruption from photography and videography in courtrooms did not apply to the use of laptop computers.

The media-law team from Holland & Knight LLP that worked on the Jacksonville blogging case was among those submitting comments questioning the need for the new rules.

The attorneys pointed to several constitutional defects in the proposed rule. First, they noted, the First Amendment typically does not allow the government to single out professional journalists for preferential access to public proceedings. Further, any rule enabling judges to seize and destroy journalists' recordings or images would constitute a classic "prior restraint" against publishing. A prior restraint is constitutionally permissible only if a judge finds an "extreme and urgent need" to avoid a "substantive evil." Almost nothing surmounts that formidable barrier.

According to Tallahassee attorney Katherine Giddings, chair of the Florida Bar committee on judicial rules, input received during the public comment window is being referred back to a Bar subcommittee, which will take the comments into account and submit a revised proposal to the full rules committee. No timetable has been set for a decision.

Tagged: Civic Engagement, newsgathering