Is it a crime to smuggle a camera into a Supreme Court argument and to film the proceedings inside?

March 1

Thanks to activist Noah Newkirk, we’ve recently been reminded that federal law makes it a crime to “make a harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds” (at least if you’re not a justice or a litigant). But what about smuggling a camera into a Supreme Court argument to film the argument and post it on YouTube? Is that a crime, or is it legal?

Several commentators have suggested that surreptitiously filming a Supreme Court argument is legal. For example, here’s Tony Mauro at the Blog of Legal Times:

The surreptitious videos taken inside the U.S. Supreme Court that popped up on YouTube in recent days were an embarrassment to the court — but not a violation of any law. The court itself prohibits cameras and all electronic devices inside the courtroom, and its screening of people entering the courtroom would likely detect most conventional cameras or phones with cameras. But while it is a crime to “harangue” or utter “loud threatening or abusive language” inside the courtroom — as occurred during oral argument on Wednesday — it is not a crime to possess or use a camera there.

I’m not so sure about that. It’s true that there is no specific statute punishing possession or use of cameras in the Supreme Court. But sneaking a camera into the Supreme Court to make a film of oral argument might be a crime under several different theories. Here’s a tentative analysis of two possibilities, with a quick mention of a third.

Theory 1: DC Code: § 22-3302, “Unlawful entry on property”

DC Code § 22-3302(B) makes it a misdemeanor to “without lawful authority . . . enter, or attempt to enter, any public building, or other property, or part of such building, or other property, against the will of the lawful occupant or of the person lawfully in charge thereof or his or her agent.” Although this is a D.C. Code provision, not a federal law, I think it still applies to federal buildings in D.C. either directly or through the Assimilated Crimes Act. See 18 U.S.C. § 13(a); 40 U.S.C. § 8103(a) (“Laws and regulations of the District of Columbia for the protection of public or private property and the preservation of peace and order are extended to all public buildings and public grounds belonging to the Federal Government in the District of Columbia.”).

The question becomes whether entering the Supreme Court courtroom by bypassing the security measures, with the intent of violating the court’s policies on using cameras in the courtroom, makes the entry “without lawful authority” and “against the will” of the court. Based on a quick skim of the cases, it appears to be the law that “it is sufficient for the government to establish that the defendant knew or should have known that his entry was unwanted” to establish these elements. Ortberg v. United States, 81 A.3d 303 (D.C. 2013). Entry in contravention of a posted policy has been held to satisfy this burden. For example, in Artisst v. United States, 554 A.2d 327, 329 (D.C. 1989), the defendant entered a university building without a university ID in violation of a posted sign requiring university ID to enter. The D.C. Court of Appeals found that this was “unquestionably” sufficient to violate the statute. If it’s a trespass to enter a university building without ID when the policy requires you to have one, it makes sense that it’s a trespass to enter the Supreme Court courtroom with a camera when the policy forbids you to have one.

One formalistic response might be that the Supreme Court’s posted policies forbid bringing cameras into the courtroom, but they don’t explicitly say that you are forbidden to enter if you have one. But I don’t think trespass law is ordinarily read so narrowly. I’m reminded of Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1995), in which two ABC reporters used false resumes to get jobs at Food Lion supermarkets and then secretly videotaped the food handling practices for a news report. Food Lion sued ABC for trespass, among other things. There was no explicit policy against videotaping the insides of Food Lion stores. Nonetheless, applying North Carolina state law, the Fourth Circuit held that the reporters had committed a trespass when they surreptitiously videotaped from inside the stores: “Although Food Lion consented” to the reporter’s entry “to do her [Food Lion] job, she exceeded that consent when she videotaped in nonpublic areas of the store and worked against the interests” of Food Lion.

Theory 2: 18 U.S.C. § 1036, “Entry by false pretenses to any real property, vessel, or aircraft of the United States or secure area of any airport or seaport”

Another possible theory is 18 U.S.C. § 1036, which states that a person commits a misdemeanor trespass if, “by any fraud or false pretense, [he] enters or attempts to enter . . . any real property belonging in whole or in part to, or leased by, the United States.” Presumably the Supreme Court building is real property belonging to the United States. So the issue is whether entering with the hidden camera with the intent to film inside, in violation of the Supreme Court’s rules on bringing recording devices to arguments or making recordings inside, makes the entry one based on “fraud or false pretenses.” The government’s theory could be that entering by intentionally sneaking the camera past the security gate is entering by false pretenses. The visitor gained entry by implicitly representing himself as a visitor to watch the argument; instead, he smuggled in a camera and used it to film the argument and post it on Youtube.

Does that make the entry based on false pretenses? I’m not sure. Section 1036 was first enacted in 2000, so it’s pretty new. Looking through the Westlaw ALLFEDS database, it has been referenced only eight times. There’s not much to go on. In one case, a doctor engaged in a tax fraud scheme tried to bypass airport security by falsely claiming that he was a diplomat whose bag could not be searched; the Ninth Circuit affirmed his conviction for attempting to violate § 1036 in a short, unilluminating paragraph. But that isn’t much to work with. So § 1036 is a possible theory, but not a certain one.

Finally, even if entering into the courtroom with a camera isn’t a crime, if the entering is done in cahoots with another person who plans to make an illegal oration inside, then the plan to carry out the speech and record it might trigger federal conspiracy liability under 18 U.S.C. § 371.

Anyway, these are just tentative possibilities rather than anything definitive. But just based on this quick look, I think there are lots of reasons to believe charges would stick if prosecutors wanted to charge a person with a crime for sneaking a camera into the Supreme Court to film the proceedings.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.
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