1A Activities Inside the Courthouse

This question comes from an officer in Alabama. The officer said they have a judge who posted an order stating that no cameras are allowed in the hallway. Apparently, auditors have been entering the courthouse with cameras, standing around filming, which draws attention to their eccentric behavior. They upload the footage to YouTube, which seems to be their goal—to gain likes, subscribes, and so on. Recently, a circuit court judge posted an order that no cameras are allowed in the magistrate’s office, signed by Judge So-and-So.

This is a public office, and I have sent a question to our attorney, but the DA has not provided an answer yet. I understand this can be complicated. I know that a judge can issue orders for the courtroom, but the officer is concerned, “Is this okay? Is this too much?” The officer cites Alabama Code 13A-10-2, which addresses obstructing governmental operations. The officer mentioned a similar situation in Oklahoma and Georgia. In Oklahoma, the officers did not remove the auditors, but in Georgia, the camera was prohibited for courtroom security purposes. The officer is asking for my opinion.

First of all, let me say that this is above my pay grade. These cases are very fact-intensive and complicated. The First Amendment is highly litigated. In fact, I would argue that the First Amendment is the most protected right in the U.S. I would love to think that the Fourth and Second Amendments are equally protected, but I digress. The point is that the First Amendment is highly litigated, and cases are very fact-specific. We know that the Supreme Court allows some restrictions on the First Amendment, as long as those restrictions are “time, place, and manner” restrictions. For example, you can’t yell “fire” in a crowded theater, and there may be restrictions on religious speech at 3 a.m. in a neighborhood. However, the same speech in a public forum at 3 p.m. may not be subject to those restrictions.

Now, I want to discuss a case called United States v. Cohen (1971). In this case, Cohen entered a California courthouse wearing a jacket that said, “F*** the draft.” The court argued that his jacket was vulgar and disrupted courtroom procedures, but the Supreme Court ruled that Cohen’s actions were protected by the First Amendment. The Court stated that “one man’s vulgarity is another man’s lyric.” Today, rap music often contains vulgar language, but it can carry an important political message.

That said, the Court also acknowledged that there can be restrictions in a courthouse. The courthouse is not a public square, but it is still a public building, and we have to be careful with First Amendment rights in such spaces.

Let me break down a few points to consider:

1. Judges have broad authority to control the manner in which courts operate. Yes, they can require you to remove your hat, stand when the judge enters, and hold you in contempt for breaking those rules. These rules help reinforce the formality and solemnity of the courtroom.

2. The First Amendment does not stop at the courthouse steps. It applies inside the courthouse as well. For example, a defendant might ask to speak on the record and then give a diatribe about injustice, which could be offensive to the judge. Judges must be cautious when limiting speech, as long as it is relevant to the case at hand.

3. Cameras can be restricted in a courthouse. The Supreme Court case Chandler v. Florida (1981) ruled that courts can restrict camera use if it would be disruptive to the proceedings. Many courts allow the media to apply for a waiver, but some courts, like the U.S. Supreme Court, do not allow cameras at all.

Now, we’re talking about an order that presumably restricts cameras anywhere in the courthouse. This raises some red flags. If the order prohibits First Amendment auditors from even using their cell phones to record what they see, it could be overbroad. I would be cautious about that.

We do know, however, that cameras can be restricted in a courtroom. For example, if filming disrupts the proceedings, it can be prohibited.

Regarding the obstruction of governmental operations, Alabama Code 13A-10-2 defines it as “intentionally obstructing, impairing, or hindering the administration of law or other governmental function by any public servant.” To charge someone under this code, you must show that their conduct actually hindered or impaired a governmental function. Simply filming, without any other disruptive behavior, may not rise to the level of obstruction unless the filming was actually disruptive. Also, there’s an intent requirement to consider.

Several cases across the country, including Glick v. Cunniffe (First Circuit), have ruled that filming is protected by the First Amendment. The right to speak also includes the right to gather information. If you can’t record what is happening, how can you share your concerns or speak about what you observed?

For example, in Illinois, a local jurisdiction enacted a law banning the filming of children in parks, trying to curb inappropriate behavior. However, a person filmed a park full of children to show the City Council that the park was overused, and they were charged with violating the law. The law was ruled invalid because it was too broad and could restrict everyday activities, like filming a child’s soccer practice, simply because other children were in the frame.

In conclusion, a few principles to remember:

1. The First Amendment applies inside the courthouse—it doesn’t stop at the courthouse steps.
2. Judges have broad authority to control the judicial process inside the courthouse, especially in the courtroom and chambers.
3. The Supreme Court allows restrictions on camera use in the right context, such as when it would disrupt proceedings.
4. If you’re enforcing a law against someone filming, ensure they are lawfully present. If they are not trespassing and are engaged in First Amendment activity (gathering information), be cautious about charging them with obstructing governmental operations without sufficient support.

Ultimately, I can’t say for sure if this is lawful. My brief discussion here isn’t enough to fully understand the specifics of what’s going on in that particular courthouse. But these are the key points to consider.

Until next time, my friends, stay safe.