Free Speech

No First Amendment Right of Access to Court Recordings When Transcripts Are Available


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)….

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  1. The thing that immediately occurs to me, (Just as it does when the FBI refuses to record interviews, BTW.) is that once you deny access to the recordings, why should the transcript be presumed accurate?

    1. Because both legally and generally, one doesn't assume malfeasance when there is no reason to.

      1. Brett's question was not about assuming malfeasance, but about not assuming a correct transcript.

        Don't answer the question he didn't ask. It makes you look like you posing and answering a strawman.

        1. The intent is to produce a correct transcript. The assumption under is that the government will do what it intended to do.

          There is no constitutional right to speculative error correction.

          1. There is no right to check up on the government. We must assume they always do right.

            What a loon world you think you live in!

            1. Sorry your should isn't what is. Not everything good is a constitutional right.

              Did you even read the opinion in the OP?

              1. The opinion fails to persuade.

                The public has an interest in the actual judicial records, not a secondhand artifact produced from the records. The public’s right should be construed as a right to the most accurate and complete record that it is feasible to provide, unless the government has some overwhelming and compelling interest in defending another right by withholding such records, and by the court’s own admission it does not have any such interest.

                1. The public’s right should be construed as a right to the most accurate and complete record that it is feasible to provide

                  Well, that'd be new doctrine. On rights generally, really.

          2. According to the plaintiffs motions they state that they believe that there are errors not that they believe there might be errors. So they are not speculating about errors, they are alleging them and require the recordings to prove their allegations.

            1. Without an evidentiary predicate as to why they believe this, that change of language is just magic words.

              1. It's okay to deny them evidence to prove the errors because they don't have the evidence to prove the errors?

                Nice! Do you work for the Air Force?

              2. Why would their own memories not be "evidentiary predicate" ?

      2. How many judges do you think have told jurors that the spoliation of evidence or refusal to turn evidence over in discovery raised an inference that what was contained in that evidence was disfavorable to the resisting party?

        1. In such cases, you need to prove the spoliation first.

          1. And how do you do that without comparing audio and transcript?

            1. Well, the court says you can pay for the preparation of a second transcript by a second (apparently court-selected? or can you choose your own if qualified?) transcript-preparer.

              Peerhaps there is some process to sue the court alleging misfeasance and get the recordings in discovery?

              Yes, Sarcastr0 is a government boot licking lowlife to assert that we ought to freely assume that courts will do anything right if no check is possible.

            2. You mean the same issue as with regular spoliation? Yeah, it's a bitch.

              You want this to be policy, make it policy.

              But it's not in the constitution. As the court lays out. Even as it says it should be policy.

              1. Who said it's in the Constitution? I just said that, if you're denied access to the recording, you've no particular reason to assume the transcript is accurate.

                1. To be sure, you can be as paranoid as you want on your own time.

                  Legally, one must abide by the presumption of regularity.

                  1. If the law says you must presume regularity where a court deliberately and unnecessarily denies you access to the evidence that might prove irregularity, the law is an ass. It frequently is.

                    It's not paranoia, it's the same exact reasoning as spoliation: If somebody deliberately makes evidence unavailable, you may reasonably assume it is injurious to their interests. Because if it weren't, they'd have no reason to conceal/destroy it.

                    Maybe the courts will refuse to act on this reasonable inference, because it is one of their own concealing the evidence, but the inference remains reasonable.

                    1. To not weave plans to deceive you out of actions you don't like or understand isn't just a good idea legally, it s a good idea to just get along in the world.

                      Gaps in knowledge don't require fiction to fill them in.

          2. Um, yes, but no. If your opponent refuses to answer your discovery requests, the judge will very often give you an instruction that says the jury can assume that the missing evidence is in your favor.

            1. This isn't discovery - the government already provided the evidence.

              I don't think it's good policy, but I also don't think it's evidence the judge is up to something.

              1. It absolutely is evidence that the judge is up to something. It's just not conclusive evidence the judge is up to something.

                You may say that it's not very strong evidence, and I might even agree, but if you were before this 99.9% certain the transcript was accurate, once denied access to the recording your new level of certainty should be less. Maybe 98% certain rather than 30% certain, but LESS.

                That's how reasoning works outside of formal logic, Sarcastro.

                1. One of many explanations is that the judge is up to something. You, of course, choose that as your preferred explanation.

                  Which...I just don't want to live in your world. It seems miserable, the number of people secretly up to no good.

                  1. I wouldn't want to live in your world, where you have to irrationally ignore evidence so long as it's not conclusive. Your certainty about anything except logical propositions should never be 100% or 0%, but somewhere in between, and you should adjust it as evidence comes in, not reject the evidence just because it's not enough to get you to 0 or 100.

                2. I may have misunderstood, but my quick skim of what the judge was saying implied that it was not the judge who was objecting to the release of the recordings, but other people :

                  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.

                  Presumably there's a rule that says this sort of thing can be released, but only with the consent of X, Y and Z. And Y and Z said no. So the defendant went down the 1A rabbit hole, unsuccessfully.

                  So we can perhaps infer something about the defendants and administrators guilty motives in denying access, but not the judge's.

                  As far as administrators are concerned, there may be deep dark deplorable reasons for concealing this stuff, but it is much more likely to be no more than the normal amour propre of the bureaucrat, and/or a reasonable fear that consenting would put them to extra work that they would prefer to avoid.

                  As for the defendants, well I can certainly think of reasons why they might prefer a written transcript, even if accurate, to a recording. A State Senator's admission as to precisely what he did to the rent boy, before turning to the rent goat, doesn't make nearly so good a campaign advert for his opponent than does an actual recording in the Senator's actual voice.

                  Moreover it may be that the official transcript does not include all noises off. Thus if the defendant emitted a loud Kamalacackle at an embarrassing moment, that might show up in the recording but not in the transcript.

              2. Sarcastro : This isn't discovery - the government already provided the evidence.

                No, it's not discovery, but also no, the government has not provided the evidence. It has provided a transcript not the recordings.

                So by analogy with discovery, when party A wishes to discover relevant facts in the possession of Party B :

                if Party B has an audio recording of a phone call, and Party A wants access to it - does Party B fully discharge its discovery obligatons if it provides a transcript, affidavitised as to its accuracy by the transcriber, but declines to provide the actual audio recording or a copy thereof ?

                Would the court, on a complaint by Party A, simply say "get lost, party B has already provided you with the evidence." ?

      3. The refusal to allow recording, or access to a recording when it exists, IS reason to. I would call it a close relative of spoliation. And in the case of the FBI, I DO assume that the reason for the policy is to permit malfeasance.

        Judges are as human as anybody. Take away checks on their behavior, and sometimes they're going to behave badly.

      4. Because both legally and generally, one doesn't assume malfeasance when there is no reason to.

        Have you met Brett?

      5. I believe it was U.S. Marshal Dave Hunt in Jesse Walter's book "Every Knee Shall Bow" on the Ruby Ridge standoff who remarked that the obtuseness of the FBI FD302 interview protocol frustrated him: everyone else used a tape recorder so there was no dispute as to what the questions and answers were. Just as in the J. Edgar Hoover 1930s, the FBI agent would interview the source taking notes in a notebook, go back to the office, draft an FD302, send a copy of the draft to the interviewee, maybe include interviewee comments in revising the final draft, creating not only an FD302 interview that is in the agent's words, but also a folder of the original notes, the drafts, etc., all of which may become discoverable evidence.

        In trial after trial, prosecution witnesses and defense witnesses both have disputed the contents of the FD302s of their FBI interviews: that's what he wrote but that's not what I said. There is plenty of historic reason to assume inaccuracy will creep in if the topic is FBI FD302.

        In the current subject, if the transcript of a court recording is accurate, there would be no reason to withhold the recording.

        When you look at how many famous movie quotes are not what the actor actually said in the movie, and the inaccuracy can be easily verified by comparison. It does not require "malfeasance" to produce a transcript that does not match a recording.

  2. Good one Brett. Is a party allowed to make it's own recording? If not what would be the reason?

    1. Ask SCOTUS.

      To preserve the courts from their own embarrassment at their own performance and to conceal corruption, one assumes.

  3. Leaving aside the Constitutional right, I can only think of one reason the court doesn't want to release the recording, and it doesn't speak well of that judge.

    1. The court agrees with you.

      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.

  4. So the rules of discovery allow the requestor to unilaterally insist that the data custodian turn it over in pretty much any format the requestor wants - as long as the custodian is one of us peons. When it's the government, no need to argue burden (providing the raw recording would generally be less burdensome than creating a transcript) or proportionality - they get to just say no?

    And these clowns wonder why the rest of us accuse them of double-standards.

    1. Since this doesn’t involve discovery, your observation is irrelevant.

      1. So you don't even see an analogy between the two situations?

        Do you have an actual moral defense or practical justification for the double-standard? Or are you going to stick with 'it's different because this arbitrary law says it's different' and ignore the normative argument entirely?

  5. Ok, so this is a Section 1983 Federal claim over the denial of the recordings by Michigan. Any idea what the underlying claim of error in the transcipt is?

    Also, what's this:

  6. There should be some precedent from the days before ubiquitous recording related to correction of errors not appearing in the official transcript. Under Massachusetts' old rules of procedure one could ask the Supreme Judicial Court to overrule the trial court on the question of whether an exception had properly been saved. (An overruled objection had to be followed by a more formal request to save an "exception", and only properly saved exceptions could be reviewed on appeal.) I think there was supposed to be a special master involved to settle factual questions.

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