Federal judiciary declines to extend cameras in courts program

The ability for the public to view the judicial branch in action took a step backward this week. After a four-year pilot program in which 14 federal trial courts voluntarily recorded and published civil proceedings online, the federal judiciary decided to not continue the program. The full report can be found here.

In recommending to maintain the current ban on cameras in federal district courts, the Committee of the Judicial Conference of the United States cited the affect of cameras on witnesses, low levels of interest, and high costs, according to The Washington Post.

Fix the Court, a national organization committed to court access and transparency, responded to the recent decision. Fix the Court’s executive director Gabe Roth said:

“This is a disappointing decision, as the benefits of video-recording federal trials are obvious to any one of hundreds of thousands of people across the country who watched the proceedings recorded during the pilot.”

Unlike federal trial courts, federal appellate courts have progressed in their openness. All 13 federal circuits record audio of court proceedings, and the U.S. Court of Appeals for the Second and Ninth Circuits permit video coverage.

The U.S. Supreme Court continues to remain resistant to public accountability, fighting efforts to open the nation’s highest court. The high court sustains a strict no camera or audio recording policy for members of the public. The Court itself records oral arguments, but the recordings are typically not published until the end of each week. The Court released same-day recording in April 2015 for the Obergefell v. Hodges same-sex marriage case. However, the Court did not publish same-day recordings for the Whole Woman’s Health v. Hellerstedt abortion case earlier in March.

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Journalists’ ability to protect sources, newsgathering materials receives favorable outcome in California federal court

A journalist is only as good as his word. When a source considers sharing information with a journalist, the source often assesses its faith in the reporter. Trust becomes the currency exchanged between the two parties.

The reporter’s privilege — a journalist’s right to refuse to comply with subpoenas seeking documents or testimony from their sources or newsgathering materials — is an important tool used by those in the media to secure the trust of their sources. However, the reporter’s privilege is not absolute.

The reporter’s privilege is a strong but also fragile tool to ensure trust with sources. The privilege, emanating from common law, the First Amendment, and state law in many jurisdictions, can be waived if a journalist shares some information with a party in a lawsuit.

What constitutes a waiver and what a waiver actually means has not been ironed out in most states. But a California federal court recently found that waiver of the privilege did not occur even though the journalist complied with a portion of the subpoena. Although this is only one decision from one lower court in one state, it is a welcomed sight for journalists and media lawyers.

For more, please read my article on the Reporters Committee for Freedom of the Press’ website here.

Journalism receives praise, criticism for 2015

Journalism is not a perfect science.

Exceptional journalism can be powerful—magnifying inequity, exposing indiscretions, and holding the powerful accountable. Examples of heroic journalism from 2015 include the vindication of Bill Cosby’s victims, the brave reporters in Roanoke, Virginia, continuing to practice their craft after experiencing violence and tragedy, and a local newspaper digging into the failings of its school system.

However, poor journalism can be damaging—resulting in negative consequences for those being covered and staining the reputation of the whole industry. This past year saw its fair share of journalism stumbles, including NBC’s once-beloved anchor Brian Williams becoming a butt of every joke about failed memories, reporters rushing to identify suspects, and Gawker’s misjudgment of what is considered newsworthy.

The examples above and more are featured in a comprehensive piece by David Uberti (@DavidUberti) for the Columbia Journalism Review titled, The best and worst journalism of 2015I highly recommended the article for those wishing to recall the year that was in journalism.

Here’s to 2016 and the ups and downs sure to come in the ever-evolving world of journalism.

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“The Good Wife” jumps into the First Amendment fray with free speech-centric episode

If there are two things I enjoy, it is the First Amendment and The Good Wife. Those two pleasures collided this past Sunday night in the eighth episode of the seventh season of the CBS drama.

The Good Wife mixes modern legal issues into its storyline documenting the life of a governor’s wife, making the show a relevant watch for those interested in politics and contemporary legal conflicts. Writers of the show often weave current legal topics into the show, recently exploring topics such as autonomous cars, Anonymous, and the NSA, to name a few.

I began watching The Good Wife during season three at the recommendation of my Mom, a strong and savvy woman in her own right who could fit seamlessly into The Good Wife cast.

This week’s episode, dubbed Restraintwas right down my alley as a media law and First Amendment attorney. Attorney Diane Lockhart, played by Christine Baranski, was tasked with defending the release of a video exposing a doctor’s questionable abortion practices.

Lockhart, although loyal in her liberal and pro-choice beliefs, chose to defend the publication of the secretly recorded video in the name of the First Amendment, free speech, and the marketplace of ideas. To the dismay of her pro-choice clients, Lockhart argued a temporary restraining order forbidding the airing of the video was a prior restraint on speech, citing the U.S. Supreme Court’s fervent stance against this type of censorship including the Pentagon Papers case of New York Times Co. v. United States403 U.S. 713 (1971).

Prior restraints, the restriction of speech prior to publication, are presumptively unconstitutional and are “the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Association v. Stuart, 427 U.S. 539 (1976). 

My ears perked as one of my favorite shows analyzed legal doctrine close to my heart. Beyond discussing the injunction against publication of the video, Restraint featured other familiar First Amendment legal arguments, including all-party v. one-party consent recording laws (a state-by-state guide can be found here), reasonable expectations of privacy, and court access.

For me, the climax of the episode came when Lockhart’s client explained the non-partisan nature of the First Amendment in the following statement:

“Anyone can defend the sympathetic client with popular beliefs; the real test of the First Amendment is whether we are willing to stand up for people and ideas we hate.”

Amen. This summarizes the core First Amendment principle that robust speech and expression should be permitted absent government restriction regardless of political views. The First Amendment grants the public the ability to be the Fourth Estate, providing transparency as a watchdog of the government and should be blind to the political leanings of the government it seeks to monitor.

To watch The Good Wife episode, visit CBS.com here.