That’s a reference to Sasser’s attendance on June 21 and 22 at the county courthouse for the murder trial of Rufus Alexander Helton. “[T]he Court inquired of various individuals who had been present during the proceedings and was advised that they had seen the recording device but could not say definitively if that device had been used during court proceedings," reads the order.
In a court appearance with Gavin Stone, news editor at the paper, Sasser admitted that he’d made the recordings — and noted that he’d gotten the green light to do so from Stone himself. Stone said he thought that court rules prohibited only cellphones, not recording devices. In fact, the technology violates an administrative court order dating back to August 2019, which bans “[c]ellphones, cameras and other electronic devices” in the courthouse.
The details matter because of the outcome: Futrell sentenced Stone to five days in jail, though he was released after one day. (According to court documents, Stone received a reprimand letter in January 2020 for having photographed a court proceeding.) The matter will be revisited at a hearing in the coming weeks.
“To say it’s excessive is an understatement," says Katie Townsend, legal director for the Reporters Committee for Freedom of the Press.
When Futrell summoned Stone and Sasser to appear before him, the judge was tying up two-thirds of the newspaper’s editorial staff. Publisher Brian Bloom tells the Erik Wemple Blog that the troubles with Futrell forced the Daily Journal — which is published in print twice a week — to abandon its in-person coverage of the murder trial. “Matthew wasn’t comfortable” returning to the courtroom, says Bloom. “And, of course, Gavin was in jail, so we didn’t have the bodies.”
Though penalties vary, the rule that journalists may not use recording devices during court proceedings is a common one in both federal and state courthouses, bedeviling reporters as they struggle to capture quotes by writing longhand in their notebooks. (Here is a detailed breakdown from the National Center for State Courts of state-court rules on media access.) Even states that permit TV and audio coverage require at least notification from media outlets, meaning that journalists, as Sasser discovered, can’t just walk into courtrooms and turn on their audiotaping devices. The rule applies in all states, says Bill Raftery, a senior NCSC analyst.
So we here at the Erik Wemple Blog wanted to ask the authorities: What’s the rationale for the no-audio-recording rule in the first place? What courtroom equities are ruptured by a silent technology?
We searched for a rationale in Futrell’s order. There is a great deal of discussion about the authority of a judge to “see that courts are run efficiently and properly” and to maintain order in the courtroom. Yet the document doesn’t explain how a reporter’s recording activities violate court decorum. Asked for a justification, Charles Keller, a spokesman for the North Carolina Judicial Branch, replied that his organization doesn’t issue comments relating to pending cases.
Raftery says that audiotaping bans in state courthouses rest on a tripartite rationale. First, courts need to have a single official court record, and competing versions stemming from unofficial recordings can lead to “ambiguity." Second, audiotapes could lead to the disclosure of protected parties in juvenile trials and other sensitive proceedings; third, courts need to guard against the mayhem stemming from a scrum of reporters setting up their devices in a courtroom.
All three arguments are easily countered. First, journalists don’t present their stories as official court records. Second, unauthorized disclosures could come about in any number of ways. Third, journo-mobs at court cases are rare. Another problem: The rules on the books, says Raftery, do not and cannot distinguish between, say, a print scribe taping a hearing merely for fact-checking and a radio station that wants to broadcast a snippet or two. (Official court reporters, who sell transcripts of court proceedings, stand to benefit from the audiotaping bans, though opinions vary as to whether their interests drive the rules.)
The pandemic exposed the silliness of the status quo on courtroom audiotaping. When the federal courts transmitted court proceedings via Zoom, they continued to insist that reporters watching at home not turn on their recording devices. “Persons granted remote access to proceedings are reminded of the general prohibition against photographing, recording, and rebroadcasting of court proceedings (including those held by telephone or videoconference),” reads a warning on the website of the U.S. District Court for the Northern District of California. We asked that court for its rationale and were told that these matters are decided on the national level.
David Sellers, a spokesman for the Administrative Office of the U.S. Courts, notes that policy for the federal courts is set by the Judicial Conference, which consists of Chief Justice John G. Roberts Jr. and senior judges from across the federal court system. Current policy prohibits proceedings “to be broadcast, televised, recorded or photographed,” he says, though he notes that “courts have adopted a variety of rules to address the admission and use of portable electronic devices.”
As for the basis for the ban, Sellers writes via email: “Portable electronic devices typically are equipped with a camera and microphone and once such a device is allowed in a courtroom (virtually or otherwise), it is very difficult to control how it is used. Any live transmission from the courtroom can impact witnesses and jurors.” But so can a story published on the Internet. We asked Sellers how often the court system has encountered such problems with journalists; he responded that the capabilities of cellphones compel limitations on their use in courtrooms.
The hassles associated with the no-audiotaping rules are far from theoretical. After high-profile hearings, says a reporter who covers the courts in New York City, correspondents from major outlets — the New York tabloids, the New York Times, various magazines — huddle among themselves to piece together quotes, a form of communal action driven by the policy.
Courtroom quips sometimes challenge even the most attentive ears, as was the case in the 2018 Bill Cosby trial in a Pennsylvania state court. A dispute arose in that trial — where cameras and recording equipment were barred — as to what, exactly, Cosby had said after a prosecutor declared him a flight risk following his conviction for sexual assault. The TV star owned a plane, said the prosecutor. "He doesn’t have a plane, you a——!” Cosby said, according to many journalists, though another version of the quote — “I don’t have a plane.” — also emerged. The Reporters Committee later argued in a filing that audio and video recordings “act as a primary resource against which misleading portrayals can be checked against.”
Josh Gerstein, senior legal affairs reporter for Politico, says the ban on audio recording is “another hurdle and it diminishes the sort of color and texture of the stories and the detail in them.” Many state courts, notes Gerstein, allow televised court proceedings, and the Supreme Court permitted live audio feeds during the covid pandemic. “At a certain point, some of these rules make no logical sense,” says Gerstein.
And rules that make no logical sense invite transgressions. The New York court journalist says they have seen peers audiotaping court hearings, sometimes with their phones tucked into a pocket. And another veteran reporter on the federal court beat tells the Erik Wemple Blog that when key moments arise in a trial, “I pretend I’m looking for texts or whatever, then I hit record, I flip the thing upside down under my skinny little reporter’s notebook and that’s it. And then I hit the little lock button so I don’t accidentally stop recording." As for the ethics of the matter: “I’m prioritizing newsgathering over a useless law, in my opinion.”
The irony of it all: The folks entrusted with enforcing the rules quite like seeing their words quoted. “Judges love — love — when you get their little turn of phrase,” says the reporter.