The Covid-19 pandemic profoundly altered everyday life. As the world shifted to a new normal, so did the courts. Instead of in-person court proceedings, many courts across the nation opted for virtual court proceedings. Those proceedings were livestreamed, and the public could view them via Zoom or YouTube.
Now, Michigan attorney Nicholas Somberg is asking the United States Court of Appeals for the Sixth Circuit to rule that a Michigan court's restriction on the recording of livestreamed court proceedings is unconstitutional. Somberg v. Cooper, 582 F. Supp. 3d 438 (E.D. Mich. 2022). Somberg took a screenshot of a Zoom hearing that he later posted on Facebook. A contempt motion brought against him was subsequently dismissed. Still, it sparked Somberg's lawsuit against the county prosecutor for an alleged violation of his First Amendment rights.
Specifically, his complaint alleged:
"Plaintiff NICHOLAS SOMBERG wants to, intends to, and desires to make recordings of public proceeding being publicly broadcasted via livestreamed court proceedings for reposting, broadcasting, commentary, expressive activity, and advocacy, but has been unconstitutionally chilled and prevented by the fear of the credible and ongoing threat of prosecution by Defendant undertaken in violation of the First Amendment."
After the district court conducted an analysis of Somberg's right to access claim, it determined that the government has a legitimate interest in ensuring the proper order and decorum of court proceedings regardless of whether those proceedings take place in a physical courtroom or a constructive courtroom via Zoom. Therefore, Michigan's courtroom decorum rule prohibiting photography and video recording inside the courtroom (unless specifically allowed by the presiding judge) stands pending Somberg's appeal to the Sixth Circuit.
In June, a three-judge panel of the Sixth Circuit heard oral arguments. While the panel has yet to issue a decision, it is likely that the decision will hinge on the longstanding tug-of-war between access to the courts and protecting the courts' overall functionality. While Zoom court proceedings may no longer be as novel as they were in 2020, greater access to the courts continues to be a hard-fought battle. Appellee argued that everyone in a proceeding (including attorneys) is subject to the court's discretion over policies concerning photographs and video recording. Therefore, the court acts as the gatekeeper of courtroom behavior to prevent any distractions or disturbances.
On the other hand, appellant argued that the moment judges decide to livestream a proceeding, they lose the ability to control whether that proceeding is recorded. A judge's application of a rule prohibiting recording is potentially lost if the number of viewers makes it impractical, if not impossible, to consistently monitor such action where, as here, Somberg's complaint alleged that over 7,000 viewers had access to the livestream. The Court asked Somberg's counsel whether limiting access to livestreams altogether would serve as a solution to this problem. He responded that limiting speech is not an appropriate remedy, especially when the government opens itself up to having information that was made public captured and subsequently repurposed.
As the meaning of access to the courts continues to evolve, the Sixth Circuit faces a decision that could either change the traditionally accepted practice of deferring to a court's rules on courtroom decorum or alter the constitutionally protected right of access to the courts solidified by the First Amendment through Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) and its progeny.
In an analysis of the latter, the Sixth Circuit might consider that while the purpose behind the prohibition of recording certain court proceedings is to prevent disruption in the courtroom, there is also a purpose behind allowing cameras in the courtroom in the first place. First, if opening the courts for capturing the events within can be done in a way that does not distract from the proceedings and is safe for the participants, then there is little harm in doing so. Second, allowing the public to view court proceedings can promote civil engagement through education opportunities and dialogue. Third, public scrutiny of judicial officials and proceedings ensures accountability. The Sixth Circuit considers these points, along with many others, as the public awaits its decision.
