The Volokh Conspiracy
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From Stevens v. Boyd, decided today by Judge Paul L. Maloney (W.D. Mich.):
As part of their appeals in state court actions, Plaintiffs sought and obtained transcripts of their proceedings. Following their appeals, Plaintiffs sought access to and requested copies of the audio recordings of those same proceedings. Two defendants, administrators of the relevant county courts, denied Plaintiffs' requests. Plaintiffs sued alleging a violation of their right to access court records under the First Amendment. The audio recordings are not sealed, they are just not made available to the public or even the parties.
This lawsuit presents the following question: Does the First Amendment's right of access attach to audio recordings of court proceedings when transcripts of those proceedings are available and the individuals seeking access to the recordings were present during the proceedings? The Court concludes that it does not and will grant Defendants' motions….
Most courts presented with right of access claims consider both the common law and the First Amendment. The common law right of access "extends to all judicial documents and records" while the First Amendment "secures a right of access 'only to particular judicial records and documents." In their discussion of the common law right of access, those courts describe what constitutes a judicial record to which the common law right of access applies. "[N]ot all documents filed with courts are judicial records. whether something is a judicial record depends on the role it plays in the adjudicatory process."
The audio recordings of court proceedings are not "judicial records" to which the common law right of access attaches. The audio recordings of court proceedings are not documents or other materials that played any role in the adjudicative process. The audio recordings are not motions or briefs filed by the parties nor are they court opinions or orders. The audio recordings are not exhibits or other information relied upon by the parties to advance their claims and defenses….
Some courts have applied the "experience and logic" test from [the Supreme Court access-to-criminal-hearings precedents] to requests for access to judicial or court records…. The Court is unaware of any tradition of public access to the court stenographer's or court reporter's notes regardless of the type of court proceeding. And, audio recording devices had not yet been invented when this country adopted the First Amendment.
For the second prong, public access to an audio recording of a court proceeding does not play a significant positive role in the actual functioning of the court proceeding. Public access to the proceeding itself plays a significant positive role. Access to audio recordings of the proceeding would be largely redundant.
Nor can Plaintiffs prevail using the Second Circuit's approach[, which considers whether the documents are derived from or are a necessary corollary of the capacity to attend the proceedings, applying the principle that "[o]nly those documents necessary to understand the merits of a civil . . . proceeding are covered by the First Amendment's presumptive right of access"]. Even if the state court set forth the merits determination from the bench and did not reduce the resolution of the issues to paper, Plaintiffs have a transcript of the proceeding.
The audio recordings are not records to which the First Amendment provides a right of access. Plaintiffs' concerns about transcript errors are addressed by the credentials and other professional requirements of court reporters who prepare the transcripts from recordings. To the extent that Plaintiffs maintain an error occurred in the preparation of their transcripts, they can have another transcript prepared by a different court reporter….
Finally, a number of courts have considered media requests for access to and copies of recordings played at a criminal proceedings. Overwhelmingly, the courts have rejected the requests and have frequently found that the First Amendment right of access does not extend to requests for copies of recordings played at the proceedings. The reasoning used in these opinions consistently reflect the conclusion that the moving parties have not been denied access. Attendance as access effectively undermines the risks and dangers associated with secret proceedings….
In Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) the Court considered the scope and circumstances of "a common law right of access to judicial records[.]" The respondent, the media, sought copies of the Nixon tapes that were admitted into evidence at the trial of President Nixon's former advisors. Approximately 22 hours of recorded conversations were played at the trial and the reels of tape were admitted into evidence. "The District Court furnished the jurors, reporters, and members of the public in attendance with earphones and with transcripts prepared by the Special Prosecutor." Several media companies later filed a motion with the district judge seeking permission to copy, broadcast and sell the recordings played at the trial. The court denied immediate release of the tapes. The Court explained that the Presidential Recording Act created an administrative procedure for processing and releasing presidential materials of historic interest, which would include the recordings. For this portion of the opinion, the Court emphasized that it addressed only the application of the common law right to access judicial records. Turning to the First Amendment, the Court found that the situation did not implicate any constitutional right to access. The press was not prevented from publishing the testimony and those in attendance were allowed to listen to the tapes and report what they heard. Reporters were also provided transcripts of the tapes. Neither the media nor the public ever had physical access to the recordings.
In United States v. Beckham, 789 F.2d 401 (6th Cir. 1986) the media sought permission to make copies of audio recordings that were admitted as evidence and played in the criminal trial, as well as transcripts of the recordings. The district court denied the request and the media appealed. The Sixth Circuit found that the district court's denial did not violate the media's constitutional right of access. The court distinguished the opportunity to hear the audio recordings at trial from access to the recordings themselves. See Putnam Pit, Inc. v. City of Cookeville, Tennessee, 221 F.3d 834, 841 (6th Cir. 2000) (involving a tabloid and internet journalist who had access to hard copies of parking tickets and wanted the same information in electronic form and finding that "Davidian has no First Amendment right to government information in a particular form, as long as the information sought was made available as required by the First Amendment."). The court concluded, because the public and the media had the opportunity to attend the trial and could report what they observed, including what they heard when the tapes were played, "if a right to copy the tapes and transcripts in this case exists, it must come from a source other than the constitution."
At least four other circuit courts have declined to find the First Amendment right of access attaches to audio and video recordings played at a criminal trial. In re Providence Journal Co., Inc., 293 F.3d 1, (1st Cir. 2002) (involving a political corruption criminal case where excerpts of video and audio recordings were played at the trial, denying a newspaper's request for copies of the recordings, applying Nixon, and explaining that the "district court has not restricted media access to, or the publication of, any information in the public domain. Indeed, the district court has gone to great lengths to facilitate access to the trial proceedings . . . By affording interested members of the media ample opportunity to see and hear the tapes as they are played for the jury, the court has fulfilled its pertinent First Amendment obligations."); Fisher v. King, 232 F.3d 391, 396-97 (4th Cir. 2000) ("The precise question presented by Fisher's as-applied challenge, however, is whether the First Amendment provides him, as a member of the general public, a right to physical access to an audio tape that was played in open court in a criminal trial, admitted into evidence, and for which he possesses a complete verbatim transcript. Under the Supreme Court's decision in Nixon . . . , the answer to this question is no."); United States v. McDougal, 103 F.3d 651, 659 (8th Cir. 1996) (relying on Nixon, denying media organizations' physical access to and copies of a video recording of President Clinton used at the trial in the underlying criminal case and holding that "the First Amendment right of access to public information does not extend to the videotape of President Clinton's deposition testimony" where an edited version of the video was played at the trial which was open to the public, the transcript was admitted into evidence and made part of the record, and copies of the transcript were released to the public); Belo Broad. Corp. v. Clark, 654 F.2d 423, 426 (5th Cir. 1981) (involving audio recordings of discussions between criminal defendants and FBI operatives that were admitted into evidence at trial, applying Nixon, and holding the no First Amendment right of access to the tapes existed for the media).
The Court finds the reasoning in these opinions persuasive. Certainly, a difference arises between recordings presented as evidence at a trial and recordings of the proceedings themselves. For Plaintiffs' First Amendment right of access claim, however, that difference lacks significance. Plaintiffs were present for and participated in the proceedings. And, Plaintiffs were able to obtain a transcript of the proceedings. Those two facts satisfy the First Amendment's right of access. As the Sixth Circuit reasoned in Putman Pit, the right guarantees access to information, it does not guarantee the information be provided in a particular form. In the Court's view, the parties had access to the information contained in the recordings. The parties continue to have access to the information though the employment of a certified court reporter who could prepare a new transcript….
The Court concludes that Defendants did not deny Plaintiffs' First Amendment right of access [which sometimes provides protection beyond the common-law right]. While the Michigan Rules of Court might consider the audio recordings to be court records, the First Amendment does not consider those same recordings to be judicial records to which the public or press must have some access. And, even if the recordings are so protected, Plaintiffs were not denied access because they were present during the proceedings, have a transcript of the proceedings, and likely could pay for the preparation of another transcript of the proceedings.
The Court reaches no conclusion about whether the Local Administrative Order is a good idea. That concern is not before the Court. The privacy concerns that attend some family court and probate court proceedings likely would not apply here—the request for access was made by the parties themselves.
Frankly, the Court has difficulty finding a justification for denying the parties a copy of the audio recording. Although the First Amendment might not require the courts to permit access to audio recordings of proceedings, the amendment does not prohibit courts from making copies available. Even our United States Supreme Court, which has historically resisted cameras in the courtroom, makes audio recordings of its proceedings available through its website. The Michigan Court of Appeals and the Michigan Supreme Court both have YouTube channels and both archive audio recordings of proceedings, which are available on through their websites. In the wake of COVID-19 and the attendant health concerns, many local courts followed suit and established their own YouTube channels, including both Antrim and Bay counties (the links can be found at the Michigan Virtual Courtroom Director on the Michigan Supreme Court's webpage)….