First Amendment right to videotape and audiotape city council hearings?

|The Volokh Conspiracy |

Many recent cases have held that there is a First Amendment right to videorecord and audiorecord in public places, especially when the recording is of public officials. Tisdale v. Gravitt, 2014 WL 4925703 (N.D. Ga. Sept. 30), concludes that this applies to city council meetings, too, even though such meetings are seen as "limited public fora" rather than "traditional public fora."

Note that, in this case, a state court had already found that the city's actions in this incident violated the Georgia Open Meetings Act, though the federal court doesn't rely on this in concluding that the ban violated the First Amendment.

An excerpt:

Plaintiff has a First Amendment interest in filming public officials at a public meeting. Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.2000) ("The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest."). Prohibiting Plaintiff from video recording the meeting—even while permitting her to attend the meeting, take notes, or make audio recordings—impacted how she was able to obtain access to and present information about the City Council and its proceedings. See Blackston v. State of Ala., 30 F.3d 117, 120 (11th Cir.1994)….

The Eleventh Circuit has held that city council meetings are "limited" public fora. "[T]he government may restrict access to limited public fora by content-neutral conditions for the time, place, and manner of access, all of which must be narrowly tailored to serve a significant government interest." Additionally, the Eleventh Circuit has consistently recognized that the government has a significant interest in "conducting orderly, efficient meetings of public bodies."

Nevertheless, the Court finds that Plaintiff has presented sufficient evidence to create an issue of fact as to whether the restriction on video recording was narrowly tailored to serve the City of Cumming's significant government interest…. [A] reasonable jury could conclude that Mayor Gravitt's restrictive policy announced at the April 17, 2012 meeting was a total ban on filming in City Council meetings. If the restriction was a total ban, it burdens more speech than necessary to further the City's interest in maintaining order and efficiency at its City Council meetings; consequently, the restriction was not narrowly tailored to serve the government interest….

[On the other hand,] if Mayor Gravitt's policy limited Plaintiff only from filming in the center aisle—in light of his belief that the location of Plaintiff's tripod could create a safety hazard and that her filming could disrupt the decorum of the meeting—the restriction may have been a constitutional time, place, and manner regulation….

UPDATE: I forgot to add that parts of this analysis are in tension with the federal courts' insistence that there is no right to videotape federal court hearings. I suppose that one can try to distinguish court hearings from city council hearings, but it's hard to see a strong basis for that, especially when we're talking about appellate courts (including the U.S. Supreme Courts), where there's no worry about interference with the testimony of witnesses, or about deterring witnesses from coming forward. Or perhaps the case would be limited to situations where state or federal statutes already provide for a right to record, in which case the practical effect of the decision would be pretty narrow. (Thanks to commenter JeffDG1 for reminding me to add this.)

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