Sixth Circuit questions whether format counts when it comes to courtroom access

A Michigan activist is claiming a First Amendment violation after a court refused to provide copies of audio from her brother’s criminal hearing where the presiding judge "lost her temper."(CN) — A Michigan woman told a Sixth Circuit panel on Wednesday a state Supreme Court rule that allows courts to exclude audiovisual recordings from public records access violates the First Amendment.Samantha Hallman sought the audio recording from her brother’s sentencing hearing in a misdemeanor marijuana possession case where she says the judge “lost her temper.” Hallman was sent a link that expired in 72 hours and was forbidden from copying or disseminating it.She was also allowed to watch video recordings from every judge running for reelection in the Oakland County Circuit Court but wasn’t given copies.Hallman wanted to use the recordings to educate voters about judges up for reelection.She filed suit in the Eastern District of Michigan, naming a handful of judicial defendants including the judge who presided over her brother’s case, Lisa Asadoorian. Hallman argues she has a constitutional right to copies of courtroom audio and video recordings.The federal court dismissed her case, finding she failed to provide a “helpful historical record” for her claim.On Wednesday, a Sixth Circuit panel considered the logic of allowing anyone to request a transcript but denying access to the recording an official transcript is based on.“What worries me about constitutionalizing and nationalizing this is it creates a disincentive to have audio recordings, because your claim isn’t that they had to have audio — it’s that if they had one, they have to give it out,” U.S. Circuit Judge Jeffrey Sutton said. “A simple response is to say, ‘OK fine, we will just do transcripts and open court.’”Sutton asked Sophia Miller, a legal intern at the Milton and Charlotte Kramer Law Clinic representing Hallman, about potential repercussions if the panel found in her client’s favor.Miller said Hallman hadn’t gotten that far because her case was dismissed before discovery.U.S. Circuit Judge Karen Moore appeared sympathetic to one of Miller’s points: If a courtroom has audio and a transcript is later made from that recording, maybe interested citizens should have access to the first record.The recording could be provided for free, Moore suggested, whereas written transcripts can cost hundreds of dollars.Attorney William Horton, of Giarmarco, Mullins & Horton, argued on behalf of the defendant judges that the audio recording isn’t the official record of the proceedings, even though it is created automatically by the court and is the source of the transcript.He cited the U.S. Supreme Court saying there is no constitutional right to television access.Moore, a Bill Clinton appointee, replied: “The Supreme Court does make audio recordings of its proceedings, and it makes those available instantaneously to the public, so their policy on video may be distinct from their policy on audio.”Sutton, a George W. Bush appointee, raised an additional concern.“The minute we say this is a First Amendment issue, every single state court will be under the scrutiny of federal courts. I’ve got to say, the lines that have come up just today, you’re going to see getting drawn differently by different courts. It seems like a big project,” Sutton said.However, he conceded if the audio recordings weren’t so sensitive that Hallman could listen to them in the courthouse, she may as well be given copies.Sutton said Miller faced an uphill battle before the panel since hers is the first case to raise the question of access as a constitutional issue. Though she couldn’t name a case with facts similar enough to lean on that supported her argument, no one could cite a case to completely discredit it, either.Her argument centers around the experience and logic test devised by the U.S. Supreme Court in cases involving a right to access criminal proceedings.Proceedings have historically been open to the press and public — the experience prong — and letting people observe them supports public trust in the judicial system — the logic prong.Moore mused that modern technology presents an opportunity to expand on that openness, while U.S. Circuit Judge Eugene Siler, a George H.W. Bush appointee, suggested the local rule prevents Hallman from doing a “homemade job” on the transcript.The panel did not issue a decision from the bench.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads