This first part of this column is about bans on note-taking in courtrooms, federal and state. To illustrate this point, I want to say a few things about a law professor and the recent hell he went through in his attempt to takes notes in a public courtroom in Cook County, Illinois. Before I get to his story, which is an incredible one, permit me to set the stage with a few bits of history.
* * * *
There was a time, in my adult lifetime, when spectators in the Supreme Court were barred from taking notes. Yes, note-taking was not permitted unless one was a member of the press corps. One had to sit and listen in silence. In an August 18, 1997 Washington Post op-ed, Professor David M. O’Brien and I put it this way:
“It is an unwritten rule but a rule nonetheless. No ordinary citizen can take notes in the courtroom of the U.S. Supreme Court, unless granted special prior approval by the officer of the Public Information Office. . . . (For an unknown period before 1988, not even members of the Court’s bar could lift a pen.) . . . . No one really really knows when the rule, which is of contemporary vintage, began. Insofar as there is any reason for the rule, it is to protect the ‘decorum factor.’ Violate the rule and the marshals whisk you away.”
“No one, including the ever-attentive press corps, fusses over the rule, one of the few of its kind enforced in any federal or state court in this land. . . . Back in 1988, however, Justice Harry Blackmun complained about the rule in a memo to his colleagues: ‘I wonder if we go too far in our request for decorum.’ Noting came of the complaint.”
We concluded our op-ed this way: “Imagine courtroom audiences . . . taking notes about what they hear and see, as if the Court were a civic classroom. Imagine citizens exercising their First Amendment rights to further their knowledge of [the Supreme Court] and their Constitution. What is amazing is that such things can only be imagined — for now.”
Ban Silently Lifted
And then the world changed in November 2002. As Tony Mauro reported in a May 5, 2003 article for Legal Times: The rule’s “demise came without fanfare and without public notice, but Court public information officer Kathy Arberg confirmed last week that sometime last November the policy against note-taking was ‘no longer enforced’ by Court Police officers.” And then this: “One of the weblogs that handicaps Court cases, [SCOTUSblog], first noted the change on April 25th after blogger Ted Metzler attended the arguments in Nike v. Kasky. As he and other spectators went through security, Metzler recalls, ‘The officer told us we could bring in a notebook and pen and we all looked at each other.’ Metzler is currently a law clerk at D.C.’s Goldstein & Howe . . . .”
Professor Samuel V. Jones
12 Years Later — Enter Professor Jones (the would-be notetaker)
He doesn’t fit the typical profile of a rabble-rouser. He is a former Marine Sargent, a former U.S. judge advocate, and before that senior counsel in the Commercial Law group at AT&T Corp and later as corporate counsel for Labor and Employment for Blockbuster, Inc. He is also a former Special Advisor to the Chair of the Illinois Judicial Council. And now he is a professor at the John Marshall Law School.
He is Samuel V. Jones. This former Marine is not a man to sit on his rights, especially his First Amendment rights. And so when the deputies in a circuit court ordered his to forsake those rights, he refused.
It all happened on May 8th during the course of bail hearings in a Cook County court presided over by Circuit Judge Laura Sullivan. Apparently, the atmosphere was tense as deputies patrolled the courtroom. At one point, according to Professor Jones, a “deputy approached and impolitely inquired, ‘Are you an attorney’? I identified myself as a professor of law doing research. She responded, ‘There is no note-taking in here.’ I wondered if the deputy knew that ‘the right of the press to access court proceedings is derivative of the public’s right,’ and journalists held no greater right than I did. I informed her that the office of the chief judge had advised me that note-taking is permitted. I asked if I had violated any laws or was disruptive. ‘No,’ she replied, and walked away.”
But that was hardly the end of the matter. Shortly thereafter, two different deputies ordered the professor out of the courtroom and confiscated his notes. “One deputy approached Judge Sullivan,” recalls Professor Jones, “and the proceedings immediately stopped. I was ordered to sit on a bench, told not to move or write, and was surrounded by several deputies.”
Judge Laura Sullivan
Here is how it ended: “After roughly 30 minutes, they released me with my notes. As I left, a group of African-Americans approached, wanting to shake hands. A lady enlightened me, ‘We saw what they did to you and figured you must be important.’ ‘Why,’ I asked. She explained, ‘Because they let you go.’”
Turns out that this is a old story in Cook County courts. According to recent a Chicago Tribune editorial, “in 2004, a different Cook County judge threw a different law professor out of her courtroom for taking notes. [Now retired] Judge Gloria Coco forbade . . . writing in her courtroom . . . . That time, it ended up in federal court. A judge said the First Amendment protects public access to the courts so that citizens can observe and critique their government, and note-taking helps ensure an informed discussion.” (Here is the case: Goldschmidt v. Coco (2006).)
Thanks to Professor Jones, the problem may now have been solved for good insofar as Chief Judge Timothy Evans has since signed an “administrative order spelling out that note-taking is permitted in court.”
→ For an earlier discussion of the same problem, see Eugene Volokh, “Ban on Note-Taking by Spectators in Court,” Volokh Conspiracy, May 24, 2013
→ The American Judicature Society has conducted a federal court and 50-state court survey of “Note-Taking Laws,” this in connection with juror note-taking.
Third Circuit to Hear Challenge to Delaware’s Voter Guide Rules
The case is Delaware Strong Families v. Biden. In his complaint filed in federal district court for DSW (a 501(c)(3) biblical civic group), attorney David E. Wilks alleges that Delaware’s election laws concerning submission of voter guides are unconstitutional. The group plans to publish a voter guide (see appendix here) 60 days before the upcoming 2014 general election. DSF’s non-partisan voter guides list all major party candidates for federal and state offices and those candidates’ positions on various issues. The responses are collected from the candidates themselves and, failing a reply, from public sources. In 2014, DSF intends to spend more than $500 to distribute its guide via direct mail and the Internet. DSW argues that Delaware’s election laws (15 Del Code § 8002(10), § 800(27), and § 8031) force it to file unduly burdensome reports with the state and require disclosure of the group’s confidential information, including the identities and home addresses of its contributors. The group maintains that such requirements violate its First and Fourteenth Amendment rights.
The lead defendant is Joseph Biden, III, the state attorney general. The State’s brief in opposition to the motion for a preliminary injunction can be found here.
Lawyers for the Center for Competitive Politics are co-counsel (Allen Dickerson, Esq.) in the case. As the Center sees it, the issue in the case comes down to this: “Should the state have the power to regulate groups that publish nonpartisan voter guides in the same way that it regulates candidate committees, political parties and PACs? . . . As written, the law appears to require groups to choose between publishing information on candidates or violating the privacy of their supporters who might contribute as little as $9 a month. As a result of the law, Delawareans will find it more difficult to get information about elected officials and candidates.”
→ See here reWSJ video interview the Center’s president David Keating speaking on the case.
Last April, Judge Sue L. Robinson issued a preliminary injunction barring enforcement of the challenged Delaware laws pending resolution of the case. In its earlier Memorandum Opinion, the District Court found the laws unconstitutional, relying on both Supreme Court and Third Circuit precedents.
The Third Circuit is in recess for August, so the case is likely to be calendared for September or October.
Woman Said to Lose City Job Offer over Campaign Contribution
Last month Elizabeth Riel was offered the job of Public Affairs and Communications Officer for the City of Santa Monica. But last week city officials rescinded that offer. Why? As her attorney Steven J. Kaplan told a reporter for the Santa Monica Daily Press, her contract was termintaed because of a “legal campaign contribution she made in 2006.”
“‘Ms. Riel contends that the City of Santa Monica violated her First Amendment rights of free speech and association,’ Kaplan said in a statement, ‘by rescinding her employment contract because’ of the contribution.”
At first, City Manager Rod Gould would not comment, noting that it was a personnel matter. But later he said: “‘The duties of the Communications and Public Affairs Officer are different from most other positions in that this person must interact with all members of the City Council, various community leaders, the media, other legislators and serve as the official spokesperson for City government,’ he said. ‘To have the trust of all involved, this person must be free of all political alliances.’”
According to Daily Press reporter David Mark Simpson, Kaplan’s “lawsuit would assert claims for breach of Riel’s First Amendments rights of free speech and association, violation of a state code that,” as Kaplan maintains, “‘prohibits restrictions on the political activities of any municipal employee,’ and claims relating to City Hall’s breach of her employment contract.”
For the Record: ACLU Opposes Udall Constitutional Amendment
In a June 3, 2014 letter to Senators Patrick Leahy and Charles Grassley, the American Civil Liberties Union formally opposed S.J. Res. 19, a proposed constitutional amendment, sponsored by Sen. Tom Udall (D-NM). The ACLU argued that “would severely limit the First Amendment., lead directly to government censorship of political speech and result in a host of unintended consequences that would undermine the goals the amendment has been introduced to advance—namely encouraging vigorous political dissent and providing voice to the voiceless, which we, of course, support.”
The 8-page letter (signed by Laura Murphy (director of the Washington Legislative Office, and Gabriel Rottman, Legislative Counsel) listed three main objections to the proposal to amend the First Amendment:
The Amendment is Unnecessary and Would be Corrosive to Vigorous Political Debate About the Issues of the Day
The Amendment Could Perversely Harm Freedom of the Press and Would Directly Eviscerate the Freedoms of Speech, Assembly and Petition, and
Amending the Constitution to Limit a Specifically Enumerated Constitutional Right is Unprecedented in the History of the Republic
The letter closed with the following statement:
“For all of these reasons, we strongly urge you to oppose the Udall amendment, and to focus Congress’s attention on enacting effective public financing laws, tightening up the coordination rules, ensuring prosecutors have effective resources to pursue straw donations and other common sense measures for promoting the integrity of our political system.”
“What you must not do is ‘break’ the Constitution by amending the First Amendment.”
[Hat tip to Nadine Strossen]
FAA Opens Door to Approving Commercial Drone Operations
From Holland & Knight online newsletter: “Today, the Federal Aviation Administration (FAA) approved the first commercial drone operation over land in the United States. The FAA, which refers to drones as unmanned aerial systems (UAS), has given energy corporation British Petroleum (BP) and UAS manufacturer AeroVironment permission to fly drones to conduct aerial surveys of BP pipelines, roads and equipment in Prudhoe Bay, Alaska – the largest oilfield in the U.S. This waiver follows the FAA’s earlier approval of drone operations to conduct aerial surveillance over Arctic waters.Current FAA regulations prohibit any use of drones for commercial or business purposes, however, the FAA will grant waivers under limited circumstances.”
“After significant deliberation, today’s approval is a concrete step by the FAA to integrate commercial and civil UAS into the national air space. The FAA is also considering requests for additional commercial UAS operations from other industries, including film and TV production, precision agriculture, power line and pipeline inspection, and oil and gas flare-stack inspection.”
Greenwald’s Surveillance Book Draws Fire
Do you agree with this statement?
“The question is who decides. It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences. In a democracy . . .that decision must ultimately be made by the government.. . . . If the leaker can go to prison, why should the leakee be exempt? . . . . I can’t see how we can have a policy that authorizes newspapers and reporters to chase down and publish any national security leaks they can find.”
– Michael Kinsley, Book Review, “Eyes Everywhere,” NYT, June 8, 2014 (reviewing Glen Greenwald’s No Place to Hide).
→ The review drew critical comments from within the Times and elsewhere.
Forthcoming Book
Amy Gajda, The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press (Harvard University Press, November 2014)
Quick Hits
Erin Alberty, “Attorney: Utah cop ‘defamed’ by Gay Pride Parade conflict,” Salt Lake Tribune, June 9, 2014
Clay Calvert, “Slender Man Meets the First Amendment: Why Suing the Character’s Creator Won’t Work,” Huffington Post, June 9, 2014 (“”Can Eric Knudsen, the creator of the fictional character Slender Man, be held civilly liable for the recent violence suffered by the young victim of a stabbing attack in Waukesha, Wisconsin?The answer is a definitive “no” under First Amendment principles of free speech.”)
Gene Policinski, “The dead do speak — freely, not to be forgotten,” NWI.com, June 8, 2014
Last Scheduled FAN Column: FAN # 18: “What to do with the First Amendment? Election Law & Free Speech”
Next Scheduled FAN Column: Wednesday, June 18th