Tuesday, October 14, 2003
Presiding Judge Backtracks on New Camera Cell Phone Policy
Order Which Drew Fire From Media Attorneys Was Intended Only as a Proposal, Spokesman Says
By DAVID WATSON, Staff Writer
The Los Angeles Superior Court’s presiding judge backtracked yesterday from a new policy banning the use of cell phone cameras in courthouses which had drawn fire from news media lawyers.
The court’s public information officer, Allan Parachini, said Presiding Judge Robert A. Dukes asked him to clarify that the policy is only a proposal which remains subject to review.
The policy was distributed Thursday and Friday to news media and others in the form of a file-stamped order, dated Thursday and bearing Dukes’ signature. It was accompanied by a memo from Parachini describing it as a “new standing order that was signed this morning” by the presiding judge.
The policy does not ban the devices, which are becoming increasingly popular. But it states that use of them to capture images is not permitted in courthouses, except in areas designated for media interviews.
Parachini said yesterday the policy will not be implemented without more discussion.
“What looks like an order isn’t always an order,” he said, adding:
“We are not to the point of having a new final order, and certainly not a rule.” Dukes intended the document to “position the court to have a final discussion” of the issue, he explained.
Lawyers Express Surprise
Its existence came as a surprise to two lawyers who learned of it at a Friday meeting of the court’s Media Committee, the attorneys said.
Kelli Sager of Davis Wright Tremaine and Doug Mirell of Loeb & Loeb said a policy to deal with cell phones had been a topic of discussion by the committee, which is headed by Judge Paul Gutman. Both attorneys said they would have expected the committee to be involved in developing any new policy.
Mirell, who represents the Society for Professional Journalists, described the document as an “end run around the vehicle that’s here to deal with these problems.” He said the camera cell phone problem had been raised in the committee by Parachini.
“All of us on the media side believed this would have and should have come back to us,” Mirell said.
Mirell said he and Sager, who represents among others the Los Angeles Times, were told Friday by Gutman that he would relay their concerns to Dukes, and also ask the presiding judge on their behalf to delay implementation of the order.
Sager and Mirell said they raised objections at the meeting to a portion of the order which permits sanctions against media outlets which publish photographs obtained by violating its restrictions.
The order states:
“Publication or broadcast of a photograph…or electronic audio or video recording or digital image taken or obtained in violation of this order may result in denial of requests for media coverage by the media agency found to be responsible for the publication or broadcast and/or court non-acceptance of law enforcement press passes or use of court press rooms for employees or agents of such media agency.”
That provision apparently would allow punishment where the media outlet itself was not involved in any misconduct, and is “flatly unconstitutional,” Sager said.
Mirell agreed, citing the U.S. Supreme Court’s 2001 decision in Bartnicki v. Vopper, 532 U.S. 514. That ruling, he said, held that the First Amendment protected a radio station’s use of a recording that resulted from an illegal wiretap.
Sager and Mirell said they expect to submit letters to Dukes this week detailing their objections to the policy.
Sager said she does not believe a new order was necessary to deal with camera cell phones. The addition of a provision to current orders covering media activities in the courthouses to clarify that photography using cell phones is prohibited would have been enough, she said.
“We hope the judicial officers on the committee will agree this order should be held in abeyance until there is
an opportunity to have full discussion of it, and that revision would be appropriate,” she commented.
In addition to Gutman, the media committee includes Judges Lisa Hart Cole, Anne H. Edgerton, and Alexander H. Williams III, Sager noted.
Mirell said he is also concerned about a reference in the order to “electronic recording.” The court’s existing policy on the use of hand-held tape recorders by reporters was “labored over” by the committee, he said, adding he hoped the presiding judge’s order was not an “attempt to revise” it.
Parachini said the order was an effort to deal with evolving technology. Instead of trying to itemize devices, he pointed out, the order states it applies to “any image-capture technology.”
The problem is one courts around the country are struggling to address, Parachini asserted. Some courts have banned camera cell phones, and some have banned all cell phones because it proved impractical to distinguish those with camera capability from the others, he explained.
The wording of the order, he said, was intended to be “generically anticipatory.”
“There is no question that this technology will be ubiquitous within 18 months.”
Because cell phones could be used to surreptitiously photograph witnesses or jurors they post a safety issue for the courts, Parachini said. The x-ray machines used to scan items brought into the courthouses cannot distinguish which cell phones are camera enabled, he said.
Court security personnel calculated that at peak times in the early morning, about 900 cell phones are brought into the downtown Stanley Mosk Courthouse each hour, he explained.
Parachini said only credentialed members of the media are permitted to bring tape recorders or cameras into the courthouses.
Copyright 2003, Metropolitan News Company