Draft court rules would ban non-media video, photos

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MONTPELIER — Proposed updated rules for state courts in Vermont call for a registration system for members of the media and would prohibit others from taking or transmitting video or photos in a courtroom without a waiver. The draft rules are now before the Vermont Supreme Court for consideration. They were written by a special committee of judges, members of the Supreme Court's procedural rules committees, court members and the media.

The rules were last updated about three decades ago and haven't kept up with changes in technology, such as smartphones, said retired Supreme Court Justice John Dooley, the committee chair. The committee worked for about a year and a half on the rules, held a public hearing and allowed for a period for public comment, Dooley said Friday.

"The major concern that needed to be addressed is people popping up with hand-held video devices, mostly cellphones, and taking video of witnesses while they were testifying with either the purpose or the result of intimidating them in the process," Dooley said. "That was particularly occurring in family proceedings."

To address that concern, Dooley said, the committee differentiated between media and non-media use of devices that take still or video images in the courtroom. Under the proposed rules, members of the public, who are not part of the media or participants in the proceeding, cannot take or transmit video or still images without a waiver from the court.

The rules also set up a registration system for media members, which currently is not in place. To take video or photos, a person will need to be a registered member of the media. The one-time registration, good for any state courtroom, would include filling out an application by a person or organization to determine if that person or group of people qualify as media members. If an application is denied, applicants can seek an "expeditious review" by the Supreme Court.

The media is defined as "any individual or organization engaging in news gathering or reporting to the public, including free-lance reporter, newspaper, radio or television station or network, news service, magazine, trade paper, in-house publication, professional journal, or other news reporting or news-gathering agency, and any individual employed by such an organization."

The presiding judge, in consultation with the court administrator and media regularly appearing in court, will specify where media members may operate still and video cameras, according to the proposal. If more than one media outlet "seeks to record or transmit" at the same time, a pooling system, which currently happens, may be required, according the document. Members of the media who have registered won't have to show a special pass to take video or still photos in the courtroom, Dooley said.

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The committee looked far and wide in coming up with its definition of media, he added.

"We are not the first state to have made this distinction," Dooley said. "We have adopted what I think is a pretty broad definition to capture what people have called the new media." The committee struck from an earlier version of the proposed rules a provision that would have authorized the temporary seizure of recording devices if officers in the court had "good cause" to believe it was being used in a prohibited way.

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Mike Donoghue, executive director of the Vermont Press Association, said Friday he had not yet seen a copy of the committee's proposed rules. He did say that the press association didn't want to see more restrictions on the media.

"Our biggest concern is who is to determine who is a member of the media and who isn't," Donoghue said. If someone is denied registration, he questioned how quickly an appeal could be heard. "If you go in and ask, and they deny you, and you file an appeal and the guy is going to be arraigned in a hour, are they willing to postpone the arraignment for 24 hours while they determine whether you're a journalist or not?"

Chlo White, policy director at the American Civil Liberties Union of Vermont, also said Friday that she had yet to see the new proposed rules. She said she has concerns about limiting access to recording proceedings to established media.

"This distinction is worrisome," she said, adding that access to courts is an important right. "Elevating certain people over others raises concerns."

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On Friday, at a meeting of the judiciary's Advisory Committee on Rules of Civil Procedure, a debate took place over whether the media and non-media should be treated the same when it came to recording in the courtroom.

"I'm troubled by any special privilege given to the media or special limitation imposed on a member of our society who is not a member of the media," said James Dumont, an attorney and committee member, at the meeting held at Vermont Law School in South Royalton. "You can be, say an active member of an advocacy group, with a legitimate First Amendment interest to participate as the Burlington Free Press. It could an animal cruelty case and the humane society wants to be there."

Superior Court Judge Helen Toor, also a committee member, said there have been instances where people have used recording devices in a courtroom "almost in a harassing way" for their own personal purposes. Toor said there is a distinction between the interests of the public and the media. "The media is sort of a public service, they have a public purpose, to share it with the world, and that's what they do."

There is a provision allowing the judge to waive "specific limitations" of the rule for "good cause."

However, Dumont said, "good cause" is a term that provides little clarity. "It's not defined anywhere," he added.

The committee ultimately agreed to recommend the addition of a clause to the waiver provision stating, "Good cause may include the fact there is a particularized public interest in the proceeding."


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