“[A]ny effort by the courts to decide who is and who is not entitled to be treated as legitimate ‘news media’ impinges on a core foundational principle”

So states the Georgia Court of Appeals McLaurin v. Ott (Ga. Ct. App. June 9, 2014) (a panel that does not include Judge Steve Dillard, a former blogger).

I’m not sure exactly what to make of this, since the issue has to do with rights beyond those required by the First Amendment, and many statutes (e.g., statutory journalist’s privileges, libel retraction statutes, media exemptions from constitutionally valid campaign finance regulations, and so on) do provide such rights just to “newspapers,” “newspapers, magazines, or other periodical publications,” or the “media”; I doubt that all such statutes are unconstitutional, and I know of no precedents so holding. (The view that the protections of the First Amendment itself apply equally to all who speak to the public, and don’t give special rights to the institutional or professional “press,” is historically very well established; but, again, here the issue is whether the “news media” or some more clearly defined set of speakers is entitled to extra protections beyond those that are constitutionally mandated.) Still, it struck me as worth noting, partly because many of our commenters have expressed similar sentiments, and partly because the statement might be seen as at least an interpretive guidance, in favor of avoiding (when possible) readings of statutes as providing such special treatment for particular speakers.

Here’s the broader context:

[Joshua] McLaurin petitioned to record the criminal calendar proceedings in Walton County on July 15, 2013, and in Newton County on July 18, 2013. The petition and brief cited OCGA § 15–1–10.1 and Uniform Superior Court Rule 22, which addresses electronic and photographic news coverage of judicial proceedings.

Following a form set out at Rule 22, the petition recited that McLaurin was “Representing” the Yale Law School and that his “Position” was “Student.” Before ruling, the trial court engaged McLaurin in an extended colloquy. During the course of that colloquy, McLaurin explained that he was engaged in a project examining the Georgia criminal justice system and the varying experiences of indigent defendants in different parts of the state. The trial court expressed concerns about McLaurin’s inability to produce credentials confirming that he was in fact a law student engaged in an academic project, that McLaurin might actually be engaged in a for-profit venture, and that the finished product might be edited so as to create a false impression. And, noting that there were thirty cases on the calendar, the trial court expressed concerns about the administrative burden of notifying the parties and any witnesses of their right to object.

At the end of the colloquy the trial court held that Rule 22 applies only to “news media” and was therefore inapplicable and that OCGA § 15–1–10.1 was controlling…. [Applying the statutorily defined factors under § 15–1–10.1, the trial court denied McLaurin's request: -EV] [T]he trial court found that McLaurin’s project would have done nothing to promote increased public access to the courts and openness of judicial proceedings [the third statutory factor] because the proceedings “are open a hundred percent now.” … The trial court found dispositive the fifth [statutory] factor, impact upon the administration of the court: “I find it does have a tremendous impact upon the administration of the court, because it doubles the court time and slows down the court time, and as the District Attorney has indicated, and the Public Defender would probably agree, they can’t work on other things while they are in court, and we have just got a case load that everybody needs to be continuing working on.” …

McLaurin enumerates as error the trial court’s finding that Rule 22 applies only to members of the news media. But any error in that finding was harmless. The trial court also found that OCGA § 15–1–10 .1 applies to the requests of private individuals like McLaurin, and the standards set out in that statute are incorporated into section (P) of Rule 22.

We note however that the introductory paragraph to Rule 22 provides that “representatives of the public media utilizing [electronic or photographic] equipment are subject to the following restrictions and conditions ….“ and section (B) of Rule 22 provides, “Approval of the judge to broadcast/record/photograph a proceeding, if granted, shall be granted without partiality or preference to any person … or type of electronic or photographic coverage, who agrees to abide by and conform to these rules.” (Emphasis supplied). See also Brown v. Entertainment Merchants Assn. (2011) (“[W]hatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears.”) (citation and punctuation omitted); Lovell v. City of Griffin (1938) (on certiorari to the Court of Appeals of Georgia) (“The press in its historical connotation comprehends every sort of publication which affords a vehicle of information and opinion.”). More fundamentally, we note that any effort by the courts to decide who is and who is not entitled to be treated as legitimate “news media” impinges on a core foundational principle….

[W]hen ruling on requests under OCGA § 15–1–10.1, trial courts “should bear in mind this state’s policy favoring open judicial proceedings.” Morris Communications v. Griffin (Ga. 2005)….

In light of that policy, we must vacate the trial court’s determination, under factor three, that because proceedings are open to anyone who wants to travel to the courthouse, the proposed coverage would not promote increased public access to the courts and openness of judicial proceedings. “A camera generally will increase the openness of a judicial proceeding, and there is nothing in the record in this case to indicate that [McLaurin's] camera would not have done so.”

And we must vacate the trial court’s determination, under factor five, that it would be an excessive administrative burden to determine whether any party, witness or other participant has an objection. We defer, of course, to the trial court’s finding that he could not notify all of the participants with a single announcement. But we still must determine whether there is a “factual basis in the record for finding that” the administrative burden would be excessive. We conclude, notwithstanding our acceptance of the trial court’s finding that a single announcement would be insufficient, that the record does not support his conclusion that the administrative burden would be excessive. The trial court has broad discretion in deciding how best to provide the requisite notice and opportunity to be heard. Under Georgia’s policy favoring open judicial proceedings as well as the text of OCGA § 15–1–10.1, a petitioner is entitled to consume a reasonable amount of judicial resources in adjudicating the petition and the merits of any objections.

We therefore conclude that the trial court erred in excluding the camera, and remand for reconsideration….

Because it may arise on remand, we question whether evaluation of “the finished product” is authorized by the seventh factor, enhancement of or detraction from the ends of justice, which the trial court did not reach. [Footnote: We likewise question whether OCGA § 15–1–10.1 authorizes trial courts to consider whether a petitioner's project is for profit or nonprofit.] We sympathize with the trial court’s stated concern that McLaurin might ultimately produce a report or video that is disrespectful or misleading. Such things have been known to occur. And members of the Supreme Court of the United States have expressed similar concerns in defending that Court’s continuing policy excluding cameras. But “Georgia law, as we perceive it, regarding the public aspect of hearings in criminal cases is more protective of the concept of open courtrooms than federal law.”

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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