City Court of Schenectady, April 19, 2024

Stephen M. Signore, Public Defender (Morgan Welling of counsel), for defendant.

Robert M. Carney, District Attorney (Michael DeMatteo of counsel), for the People.

On April 1, 2024, defendant was charged with trespass in violation of Penal Law § 140.05 and issued a ticket to appear in Schenectady City Court on April 19, 2024. Before the court is defendant's request, filed on April 11, 2024, pursuant to the Rules of the Chief Administrator of the Courts (22 NYCRR part 131), for leave to video record his criminal proceedings. Defendant asserts that he is an independent journalist, and that recording would promote transparency in the proceedings.

"In New York, the rights of the press to report on judicial proceedings is extensive" (Matter of People v Solomon, 138 Misc 2d 587, 589 [Suffolk County Ct 1988, Vaughn, J.], citing Judiciary Law § 4; Richmond Newspapers, Inc. v Virginia, 448 US 555 [1980]; Matter of Associated Press v Bell, 70 NY2d 32 [1987]; see generally US Const, 1st Amend). Further,

"[i]n order to maintain the broadest scope of public access to the courts, to preserve public confidence in the Judiciary, and to foster public understanding of the role of the Judicial Branch in civil society, it is the policy of the Unified Court System to facilitate the audio-visual coverage of court proceedings to the fullest extent permitted" by statute and the orderly administration of justice (22 NYCRR 131.1 [a]).

Notably, the extent of press access continues to be a discussion for the State Legislature (see e.g. 2023 NY Senate Bill S160A).

While First Amendment principles apply to considerations of press coverage, the right to cover judicial proceeding must be balanced with the court's duty to ensure the orderly administration of justice (see generally Chandler v Florida, 449 US 560 [1981] [Constitution does not prohibit nor require allowing cameras in the courtroom]; Courtroom Tel. Network LLC v State of New York, 5 NY3d 222 [2005] [Holding that neither the Federal nor State Constitution provides right to record trials]). In Richmond Newspapers, Inc. v Virginia, the Supreme Court held that while there was a general right to access, this

"does not mean that the First Amendment rights of the public and representatives of the press are absolute. Just as a government may impose reasonable{**84 Misc 3d at 298} time, place, and manner restrictions upon the use of its [*2]streets in the interest of such objectives as the free flow of traffic, so may a trial judge, in the interest of the fair administration of justice, impose reasonable limitations on access to a trial" (448 US at 581 n 18 [citation omitted]; see also People v Santiago, 185 Misc 2d 138, 160 [Monroe County Ct 2000, Bristol, J.] [Decisions recognizing a right to access should not "be read to stand for the proposition that the press' right to enter the courtroom with their cameras and recording equipment is unfettered"]).

Indeed, even the United States Supreme Court does not provide video coverage of its arguments. New York courts have acknowledged that cameras in the courtroom can potentially impede on the right to a fair trial, with possible prejudices "including whether jurors will be unwilling to serve, witnesses reticent to testify, or attorneys prone to grandstanding" (Matter of Heckstall v McGrath, 15 AD3d 824, 826 [3d Dept 2005]; see generally Civil Rights Law § 52; Sheppard v Maxwell, 384 US 333 [1966] [Due process rights implicated by extensive media coverage]; Estes v Texas, 381 US 532 [1965] [Recording so distracted trial participants as to deprive defendant of a fair trial]).

Defendant's characterization of himself as an "independent journalist" raises certain legal and factual questions. The Rules of the Chief Administrator of the Courts define news media as

"any news-reporting or news-gathering agency and any employee or agent associated with such agency, including television, radio, radio and television networks, news services, newspapers, magazines, trade papers, in-house publications, professional journals, or any other news-reporting or news-gathering agency, the function of which is to inform the public or some segment thereof" (22 NYCRR 131.2 [c]).

While there is a legitimate question about whether a "[c]onstitutional activist who conducts 1st Amendment Audits and public employee accountability checks" qualifies as "news media" under the definition, courts should be hesitant of any system that arbitrarily restrains First Amendment rights (see http://longislandaudit.com).

For a host of reasons, attempts to define "the press" presents both fact issue challenges and constitutional dangers (see generally{**84 Misc 3d at 299} First Nat. Bank of Boston v Bellotti, 435 US 765, 799-802 [1978, Burger, Ch. J., concurring] ["the Framers did not intend to limit the freedom of the press to one select group . . . In short, the First Amendment does not 'belong' to any definable category of persons or entities: It belongs to all who exercise its freedoms"]; Matter of Daily News, L.P. v Wiley, 126 AD3d 511, 512 [1st Dept 2015] ["The press is not imbued with any special right of access, and while it possesses 'the same right of access as the public,' it has no right to information about a trial that is 'greater' or 'superior' to that of the general public"]; Rupert v Sellers, 65 AD2d 473, 483 [4th Dept 1978, Cardamone, J., concurring] ["Absent any suggestion to the contrary by the Court of Appeals" courts should not afford greater rights to the media than private individuals]). "[T]he traditional doctrine [is] that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods. Freedom of the press is a fundamental personal right" (Branzburg v Hayes, 408 US 665, 704 [1972] [internal quotation marks and citations omitted]).

As applicable here, the Rules of the Chief Administrator of the Courts set forth a list of relevant factors for the court to consider (see 22 NYCRR 131.3 [d]). As relevant here, the court must consider the "type of case involved [and] . . . whether the coverage would interfere with the fair administration of justice, the advancement of a fair trial, or the rights of the parties" (id. § 131.3 [d] [1], [3]). Here, defendant's case arises, at least in part, out of the very activity he seeks to carry out in court. Further, as noted above, courts have an obligation to minimize distraction during proceedings, particularly criminal proceedings, and to ensure the orderly administration of justice. To allow [*3]any defendant to record a proceeding could possibly open the door to distraction and disruption. Where recording itself is an issue in the case, such concerns are amplified. "As the Federal Judiciary Committee concluded, when weighing the First Amendment benefits of audio visual coverage against fair trial concerns, any negative impact may be sufficient to tip the scales against" allowing recording (Courtroom Tel. Network LLC v State of New York, 1 Misc 3d 328, 369-370 [Sup Ct, NY County 2003, Kornreich, J.], affd 8 AD3d 164 [1st Dept 2004], affd 5 NY3d 222 [2005]). "The primary governmental interest, both state and federal, is guaranteeing that the defendant receives a fair trial. Consistent with that{**84 Misc 3d at 300} interest, the court must be concerned with the defendant, jurors, witnesses, attorneys and the public at large" (Courtroom Tel. Network LLC v State of New York, 5 NY3d at 232 [2005] [citations omitted]).

Based on the above, the court is denying defendant's request to video record his own criminal proceedings. The court finds that video recording of defendant's criminal proceeding would interfere with the fair administration of justice.