"Bloggers, Xers, Facebookers, YouTubers, Instagrammers, and Others" have Right of Access to Court Proceedings,

including the right to videorecord, given that state law (unlike federal law) provides for such videorecording for the mainstream media; so holds the Ohio Chief Justice.

A short excerpt from Ohio Supreme Court Chief Justice Sharon Kennedy's long opinion in In re Disqualification of Wollscheid, decided Oct. 31, 2024, but just posted on Westlaw last week:

Cody Henderson, the defendant in the underlying criminal case, has filed an affidavit of disqualification pursuant to [Ohio state law] seeking to disqualify Judge Susan R. Wollscheid of the Washington Court House Municipal Court from presiding over the case….

On June 17, 2024, Henderson was arrested for menacing, a violation of R.C. 2903.22(A)(1)(a). The alleged victim of the offense was a sheriff's deputy, Lieutenant John M. Warnecke….

Judge Wollscheid's actions interfering with Henderson's rights to self-representation and to a speedy trial [details in the opinion -EV], while appearing to be improper, do not by themselves provide a basis to disqualify her from the underlying case. But although it is well established that adverse rulings do not on their own require the disqualification of a judge, "it has also been recognized that 'a judge could be disqualified if his or her adverse rulings were accompanied by words or conduct that call into question the manner in which the proceedings are being conducted.'" And this case is not just about Judge Wollscheid's treatment of Henderson's constitutional rights. An additional issue is the judge's denial of media access to the underlying proceeding.

After Henderson's arraignment, Caden Reed and Ethan Womack, both representing Omniversal Media L.L.C., submitted media-access requests {for "[a]udio/video recording outside," to "[a]udio/video record," and to "[p]hotograph the courtroom"} pursuant to Sup.R. 12. Henderson claims that Judge Wollscheid's denial of those requests without first holding a hearing is proof of the judge's bias and prejudice against him and creates the appearance of impropriety requiring the judge's disqualification from the underlying criminal case.

The Sixth Amendment guarantees the right to a public trial. A public trial ensures a fair trial. Similarly, the First Amendment grants the public and the press a qualified right of access to a criminal trial. "Underlying the First Amendment right of access to criminal trials is the common understanding that 'a major purpose of that Amendment was to protect the free discussion of governmental affairs.'"

That protection "serves to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government." "[P]ublic access to the criminal trial," while not absolute, "fosters an appearance of fairness, thereby heightening public respect for the judicial process." The justification for denying the press access to a criminal trial, therefore, "must be a weighty one." And any denial of access to the press and the public must be "necessitated by a compelling governmental interest, and … narrowly tailored to serve that interest."

Article I, Section 16 of the Ohio Constitution also guarantees the right to open courts: "All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay." As we recently explained, "our Constitution protects public access to court proceedings that extends further than the United States Supreme Court's interpretation of the free speech and press guarantees of the federal Constitution." … This court has recognized that the free-speech provision of the Ohio Constitution affords greater protection than the free-speech provision of the First Amendment to the United States Constitution.

In keeping with the constitutional rights to open courts and free speech, Sup.R. 12(A) mandates that "[t]he judge assigned to the trial or hearing shall permit the broadcasting or recording by electronic means and the taking of photographs in court proceedings that are open to the public as provided by Ohio law." It is only after the judge consults with the media that the judge may place limitations on where in the courtroom "operators and equipment are to be positioned." Therefore, "a trial court may not exclude cameras from 'court proceedings that are open to the public.'"

In her response to the affidavit of disqualification, Judge Wollscheid states that she declined Womack's media-access request without a hearing because she "did not believe [it] to be a legitimate request." The judge based that decision on her unfamiliarity with the media outlet, on the media outlet's not being local, and on the company's being just a "Youtuber." And she says that she denied Reed's media-access request to avoid giving Henderson an audience for what she characterizes as disruptive behavior.

"The press" protected by the United States and Ohio Constitutions is more than just newspapers, books, magazines, and cable-television networks. "'The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.'" "[P]eople during the Framing Era and at the time of the ratification of the Fourteenth Amendment understood that the freedom of the press meant the right of every person to use technology (such as the printing press) to engage in mass communication." …

And "the Supreme Court of the United States has consistently rejected the proposition that the 'institutional press' is afforded more protection by the First Amendment than other speakers." … [T]he press … includes citizen journalists who use technology for mass communication. Citizen journalists—which Henderson has proclaimed himself to be—include bloggers, Xers, Facebookers, YouTubers, Instagrammers, and others who use media that allow citizens to speak and express their views and opinions. All of these can be considered members of the press who enjoy the right to gather the news and the right to publish it—after all, "[t]he protected right to publish the news would be of little value in the absence of sources from which to obtain it."

Sup.R. 12 upholds these principles, and it does not authorize judges to decide for themselves who has a legitimate voice and who does not have a legitimate voice. Nor does it allow a judge to deny media access to broadcast criminal proceedings solely to avoid giving the accused an audience—drawing an audience is the whole point of the press….

Therefore, to allay any concerns about the fairness and integrity of the proceedings and to ensure to the parties and the public the unquestioned neutrality of the court, Judge Wollscheid is disqualified from presiding over Henderson's case.