For more than 35 years, states have been allowed to let cameras in the courtroom, but some courts have enacted full bans — not just on TV cameras and photographers but on all electronic devices, and at all times. A Michigan man thinks this is going too far, and has officially petitioned the Supreme Court to settle the matter.

The particular cellphone ban at issue here involves Saginaw County, MI, where in 2013 the court’s judges issued an administrative order [PDF] banning “any device capable of communicating information from one person to another,” which not only means cellphones, but computers of all sorts, and the ever-popular two-way radios.

As the court’s website indicates, this prohibition doesn’t just cover the courtroom, but entire swaths of the four-story courthouse building. Judges can — and have — exempted individuals from this ban, but the court’s default position is that electronic devices are not welcome.

In 2014, a Michigan man named Robert McKay — a critic of such restrictive courtroom policies — filed suit in federal court, alleging that these blanket prohibition on electronic devices violate the First, Fifth, and Fourteenth Amendments.

McKay proved unsuccessful at the District Court level, with the judge pointing out that federal appeals courts had upheld bans that prohibited the public from attending certain legal proceedings, like deportation hearings, let alone being able to record them with their phones or other devices.

“In contrast, McKay may attend the judicial proceedings in the Saginaw County Courthouse,” explained the District Court judge. “He can attend, observe, and take notes on the proceedings. The only prohibited action is recording the proceedings via personal electronic devices.”

The District Court also concluded that McKay lacked standing to bring the case because the cellphone ban had not yet harmed him and he faced no “credible threat of prosecution.”

In 2016, the Sixth Circuit Court of Appeals agreed, and concluded in order for McKay to demonstrate that the cellphone ban was so chilling of free speech that it granted him standing before he’d actually been harmed by the rule, he would have to show other factors. Is there a history of enforcement of this rule against others? Has he received warning letters? Is there something about this rule that makes it more likely for it to be enforced than others?

McKay contends that these criteria are too restrictive and alleges that they conflict with Circuit Court rulings in other parts of the country. He points to a Seventh Circuit ruling from 2010, which acknowledged that the plaintiffs in that case had not yet been injured by the statute in question, “but the existence of a statute implies a threat to prosecute, so pre-enforcement challenges are proper, because a probability of future injury counts as ‘injury’ for the purpose of standing.”

Similarly, in 2003 the Ninth Circuit noted that a plaintiff can show “an actual and well-founded fear that the law will be enforced” against them if their “intended speech arguably falls within the statute’s reach.”

In his petition [PDF] to the Supreme Court, McKay argues that, based on precedent, if he’d brought this lawsuit in a different federal court circuit, “his claim would not have been barred for lack of standing but would have proceeded to a merits hearing.” And because it’s the job of the Supremes to sort out disagreements between the various circuits, he argues that this case is an “ideal vehicle” to resolve this issue.

Even if the Supreme Court were to find that McKay does have standing to challenge the cellphone ban, he’d still have to demonstrate that the rule chills free speech as he alleges.

McKay’s position is that, because there is a constitutional right to access court proceedings, and a right to record public officials conducting public business in a public forum, “there is a First Amendment right to publicly record courtroom proceedings.”

“Recording and disseminating court proceedings serves the cardinal First Amendment value of protecting and promoting the free discussion of government affairs,” argues the petition, which does concede that there are “reasonable limits” on this right to record judicial proceedings.

However, McKay believes that such limits and restrictions must be narrowly tailored for situations where shielding certain proceedings from public view serves an important purpose, as opposed to merely preventing people from recording a public hearing.

“If a courtroom is legitimately closed to the public, then it should be closed to recording as well,” acknowledges McKay. “But in the absence of extenuating circumstances, this Court should hold that the First Amendment protects a right to record public courtroom proceedings occurring in a public place.”

It’s now up to the Supreme Court justices to decide if they want to take up any of the issues presented in McKay’s petition or if they choose to let the Sixth Circuit ruling stand.

Of course, it’s worth noting that the Supreme Court bars phones, cameras, and recording of any kind when it is hearing oral arguments, though it does make transcripts and audio recordings available to the public for free.

That’s why, in 2014, HBO’s Last Week Tonight made available this footage of dogs dressed up as SCOTUS justices, so that people could put video to those audio files:

[via Courthouse News]

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