i have already taken care of such things hemorrhage time have you requested two minutes thank you thank you your honors this morning the case that's before you was unique in that this is not an expression case this is not an access to court case this is a case in which i'm a arguing for the this court to recognize as a matter of first instance a little branch off the first amendment known as the information gathering branch in this i have based this case primarily on two decisions one authored by one of the panelists today in the glick case in glic it was held that the videotaping of public officials was an exercise of first amendment liberties the trial court below aired in that he concluded that there was no first amendment at all that in the courtroom the first amendment is dormant in full i believe that to be an error and i'm arguing to this court that this was an error i think the real issue that's before the court today is is the limitation placed by the second a county courts and ultimately the babbitt decision the united states supreme court and babbitt behalf of the court need to be mindful that this is not my client has been engine is suing for injuries this is a pre enforcement action as a pre enforcement action the injury has not yet physically occurred and so what the supreme court has developed a test for this very set of circumstances and there's two elements that are required one is that you need to be an intention to gauge in the course of conduct the that is prescribed that is prescribed as being unlawful or prohibited in this case the affidavit both the verified complaint and the affidavit there was attaching a lower court record as exhibit k on the first amendment wasn't that affidavit did not filed in the court record to you or on your second motion for summary judgment it was the same i believe it was the same arguments that were made in the verified complaint as well so so for that argument for the first amendment kline you have only be amended verified complaint isn't that correct on the record the amended complaint is not verified that's why there was an affidavit that was in support of of that aspect the court the court essentially in the in the conduct arguably affected with the constitutional interest and the the the final credible threat of prosecution so let's start with the intent to engage in a course of conduct i'm struggling with how you meet that standard because this is not a case in which you have challenged been prosecuted for violating of my own client has it by the affidavit that's in the record as well as the complaint itself is seeking that he wants to do this recording but for i believe the language in the affidavit to the just a i have the affidavit in front of me it says but i don't like and i'm struggling with whether you can use the yes today because this is the first motion of the two motions for summary judgment monder standing of the record is that that af essential a three substantive motions the first the motion was the motion for eliminator injunction the court essentially jumped over the standing argument because he concluded that there was no standing because there was no first amendment right let me ask you this related to question let's assume that she's correct and it wasn't violent till the second one is that fatal to your standing argument i don't think if not why not i don't think it is and the reason being is my client is part of his that is part of his original verify complaint was seeking to actually undertake these activities he did he didn't actually make the application to the to the court he didn't actually file permission to ration to record that's correct because what his what the argument is is that the existence of that instead very policy the very way it's in place is unconstitutional counsel why why not seek permission i mean you have an order in place that specifically provides for these kind of you might characterize them as out hard judgments but there was no threat to him in seeking permission he wasn't going to be prosecuted for seeking permission it does seem to raise a serious standing issue when you have that alternative available and the provision was never saw it with the permission here was never sought and it largely because that the policy of the electronics ban policy that's in place itself is being alleged as being a violation of  have to go through the processes of the for of an unconstitutional procedure in order to suffer the harm in order to challenge that very very policy i mean essentially i could have instructed my client to either you know try to blast your way through the front door or sheriff's deputies and course we he would have been there would have an adverse reaction and i think the signs around the courthouse foretell all the problems he is going to reach if he tries to do that  constitutional standing acquirement because if you just say this is a problematic law and anybody in the world can come in and have standing to challenge that i think you have a constitutional issue about whether there is redress ability whether there is harm all of the constitutional standing provisions and for that reason the law requires you to show and  injury in fact which begins with the intent to engage and perhaps we could you could tell me a little more about the second component which is arguably affected with a constitutional interest i'm struggling with that because because here or what we've got is a courtroom and areas around the courtroom that are defined and the cases that you cite and argue first if first circuit case however the the us supreme court has held that a trial court room is a public place that is the richmond newspapers decision and so i think what we have here is a circumstance where the courts have long been treated almost as a temple in a way as a is a real as a a temple in democracy and therefore you would be unheard of to record in such a circumstance the the test i believe that was laid out  glick was not in the language of glick is if i may read the from the very the very language of it is that the video recording of public officials is an exercise of first amendment liberties you seem to take the view that just because a courtroom is open to the public it follows from that any exercise of a person limit rights such as taking a video in a courtroom it follows from that but doesn't that isn't important to understand what kind of a public space it is we have different kinds of public spaces just because it's open to the public it doesn't follow that and the exercise of the first amendment right there  is permissible it seems to be your position but i mean if we if we were to take the glick case and change the facts slightly and say arguably that the city of boston has made it a crime to video record public officials police officers in boston common without the permission of the police officer at the time would that change the outcome of glick and i don't think that i don't think that would essentials here what we're treating as a retreat in the courts is something ultra different as a public space but isn't that the question that i think the question the supreme court's decision asked us and the sixth circuit decision in conway  declined to recognize any constitutional right to record courtroom proceedings are close to your argument i don't think so one for one reason for under conway if i can dispense with away right off the bed before you jump and as to which i think is the more important decision conway dealt with the right of access that's how the issue was framed is that i'm being precluded from being in the courtroom completely my client is not precluded from the courtroom my client is preclude that once he's in the courtroom he can use his i phone or his his personal recording device to make a record of public activities of public officials that are being conducted in a public space estis now i will i will  sixty s television technology cameras were the size of volkswagen beetles and cords were the size of fire hoses today a recording device has been minimized to the to a small device and the it in the size analogy is a deck of a deck of playing we're looking at is the problem with the disruption of the proceedings the camera in the corner or is the problem when someone in the audience hol assuming it's the latter can't we say the same thing about police officers when they're in the middle of a of a very dangerous pullovers cops return that routinely argue that being pulled over at a particular time is the most dangerous aspect of a police job isn't  example the mr glick was ten feet from recording so if the concern is actually the disruptive aspect of it we would have no first amendment right anywhere whether it's a police officer or court what about what about the rights of other people is their right there are others in the courtroom not to be recorded and i always think about criminal proceedings what about those do we have to balance the mister your client's right against the rights of others in there who may elect not to be recording again i fully point to you we use boston commons as the example would a spectator who was out at a parade have have an expectation of it but but but lots of comedy is going to be different than the interior of a courtroom where proceedings are going on and you have people who are intimately involved in  know other spectators i mean nobody can doubt that somebody sitting in the courtroom has the right to make notes or maybe even make sketches or listen and almost take a transcript but the camera and recording that is different  can look at disruption as one angle but then there's the simulation aspect potentially so isn't that something we have to consider i lighted on the police respond often i guess the argument that i would say in opposition to that would i disagree with that and the reason being is that again looking to supreme court precedents supreme courts as a trial courtroom is a public place it has to be understood as a public place with a very specific purpose and to just characterize it as public it doesn't follow from that that you can exercise this the information gathering function that you invoke in a way that you could on the boston commons which is a very different kind of public space you seem unwilling to acknowledge the public spaces come in many different forms i would acknowledge that public spaces do come in many different forms and that's i think the real issue that this court needs decide upon is if the trial court below said there is no first amendment right at all in a courtroom ok the problem here is i think that's an error of law and so as a result and i think the real question is what is the proper scope of a court to be able to limit the first amendment activity not simply in this case the second the county courts by the sheriff's deputies have banned all photography except for permission given by a judge that means you have to get a license from a judge in order to be able to exercise a first amendment activity as one final question sure lots of but i would like you to address the third component of the injury in fact standard which is the credible threat of  prosecution would you agree with me that our law is clear that subjective chill a lie is insufficient i would agree however this is not a subjective chill case and the reason any of the activity so there was no threat to them for being prosecuted of the hate crimes for example here we have an exhibit here we have a case for my client wants to audio and video record in a courtroom and if he goes in and tries to do it anyway but for this electronic band policy that's in place him under the current occur under the current electronics ban order he could be he would be subject to contempt unless they get permission from the judge and unless he were granted first amendment there is a look first amendment liberty i'm hoping i can get across this point today if i can leave you with this thought there is a first amendment liberty to record public officials doing public business the question i think this court has to decide is is the curtailment of those first amendment activities any courtroom permissible and to what extent they're permissible here i'm arguing that the methodology adopted by the second county courts and the sheriff's deputies is an impermissible way to curtail the first amendment liberties that exist because the policy that they utilize is a license based system it prohibits you have to get permission to exercise your first amendment rights and the next step beyond that is even assuming that the court can say are we  courts can limit first amendment activities in a courtroom however the methodology you have to use has to be one that complies with all aspects of the constitution and this case i'm asking that it needs apply strict scrutiny in that it has to be them a compelling government reason to limit first amendment liberties and it has to be narrowly tailor argument let me just understand your argument is that there is no you know courtroom because it's a public place first amendment rights may not be curtailed i'm arguing that they exist the trial court below said they didn't exist at all and that's that's the error that i am bringing to this court and i think the court is in an excellent position given glick to rule that that that is an incorrect conclusion of all there is a first amendment right there is first amendment rights in a courtroom because of the public space the question becomes then for this court is is what is the constitutionally permissive form of curtail ment of those first amendment rights and in this case the second county being on the electronic ban policy that was put in place prohibits it except for with the discretion exercised by a judge using a policy that has no standards no directions no guidepost and so i i know this is the trial court below i think made the somewhat of a spaghetti mess of the of a nice hierarchy way to deal with this because and that's the subject title one of my brief is it put the cart before the horse he said there is no first amendment right so therefore there is no there is no standing there is no first one last question yes there is no first amendment right in a a slightly different pre divorce mint case correct correct and the point here is that this is a little bit different of a branch just as a first oppression issue and i will and i'm i no one putting a lot of a lot of weight on your shoulders in order to find this because contrary look the case law this come down the pipeline so far whether it's in this circuit or other circuits i've always dealt with this as a reporter usually as a reporter or a media entity trying to get into a courtroom with their equipment to live televise a trial  and the courts have long kind of been reluctant on that have said and they really haven't come back and said whether there's a first amendment right or not i think the and that's why i'm asking for this court to adopt  establish a test that would set forth the circumstances in which a recording would be constitutionally permissible permissible if at all and that's the issue that i think that this court and i think we're struggling with because as judge letting ten noted below there is no real test to deal with this sort of circumstance that we find ourselves in now i cannot believe and so just for the purpose of the first amendment analysis does it make a difference in the glick situation if that individual who happened to observe what was happening between the police and the individual being arrested did not have the first amendment right to record th would have been arguing no accountability for the way in which the police were acting in the courtroom setting which is public and there are many other people there observing the media they're often there observing it there are many ways in which the government officials remain accountable for what they are doing because of all the other individuals who can be there to observe to take notes and to report to the public what's happening in that way there's a very different great difference between those two public spaces does that matter for your first amendment argument i don't think it does and the reason being is essential the if we take that conclusion out to the far ends it would be the government selecting the methodology in which to challenge something that's perceived to be a bad policy or illegal in some way for example you're talking about in a courtroom there would be an appeal process there would be there would be reporters who could report on different things the problem that we see here is that we're treating the courtroom as something suffered from the rest of the world and i think is what we're doing here and that at least what's what the court cases seem to be doing the courtroom is some place that can't be bothered by being part of what i believe are first amendment activities because it might be disruptive what we what what we and i what i'm asking this court essentially by this case here today is to acknowledge that the courts are an intricate part of the governmental system there are issues that are decided and debate and worked out in a courtroom and that individual should have the ability to bring in that information in later on transmit that information out to some other use so that in the way that that you've kind of had is that later on now but but given that given the the level of technology right now there would be no if we had up your position the courts really would not be able to  control the point at the time of distribution because i would imagine that at some level the technology now people could live stream it from small devices or do any other things that they could you know you talked before about the cameras being able to come in and report live can you guarantee that that didn't happen now well i can't guarantee anything i'm merely one lawyer in the system obviously but i mean how that we mean a court who said ok you can record on your i phone or whatever without your position i think we would have another case for another day in the fact that you're asking of assume in this case mr mr mckay it's normally i'm only following up on your phrase at a later time sir and i think that's a fallacy if i if i made if i may respond to that the i think the what you're asking is that would it be permissible if i could rephrase what you're asking here would be is is it permissible for a court to ban live broadcast from the courtroom as opposed to recording would that be constitutionally sufficient no that's not really that's not ok i apologize then but what i'm and i guess i'm not a more i'm less asking your question than challenging your statement that i think we're ok i guess i guess i guess the point i guess the point i would like to be if i could finish by saying here is that the point i would like to get across to would be is that the trial court judge below basically said essentially said that the first amendment activity first amendment liberties morning your honour's karen daily on behalf of the defendants i think you're pretty clear on what my position is from what i've heard so far today i just want to address the standing issue first i think this case can be dismissed based on the standing issue i don't even think you need to get to the first amendment issue the plaintiff here does not allege that he has already been prohibited he doesn't allege that he had applied for and was denied a permit to subjectively chilled so this is a subjectively chilled case and an allegation of subjective being subjectively chilled that's insufficient to establish an injury and in fact this is this is just like the morrison case that this court decided that was a case where the student he was a christian he believed part of his christian beliefs was to tell other people what his beliefs were and he had homophobic beliefs he claims he didn't make any statements because he was afraid of being punished that's exactly what's happening here he's choosing not to bring in the electronic device because of the perception that he may be  punished that goes to the third element that judge strand referenced earlier the credible threat of prosecution in this case as far as the directive goes the deputies have no authority to issue any contempt charges would give them the opportunity to take the right we're going to enforce it you get to go take your recording device right with it in your car right they said that they would be given the choice just like any other prohibited item if they bring a gun and if they bring a knife in the r allowed to go back to their car and leave it in their car here that that's all they were instructed to do in fact the in the directive they were specifically told not to  not to hold anyone just to ask them to they've never had an issue with this that's that's a problem you know every every corner i've ever been into every circuit court that's its policy in fact i went to an argument with my i pad couldn't bring it in because i didn't have my bar card i mean it's it's standard policy and circuit court but even under the even under the electronic policy there's no guarantee of sanctions the trial again the what he wanted to do you want to be able to go into the court room with his cell phone electronic device and record the proceedings that a judge might say sure there's really that's not a plausible solution is  do that i don't know i mean that's up to the judge i mean that's that's what the courts have said that the government cut the heart out of the order the judge were to do that well the judge has the discretion i magine they said they're allowed permits for recording weddings for recording i when i was sworn into the bar my parents videotaped that back then i'm not injured he wants to go into a just a run of the mill crawl you might say that's what he wants to record he's not talking about a wedding or some ceremony all of them all maybe but that's what he needs to show for constitutional standing he has to show an injury and fact and he does not show that here even if he did have to do you distinguish you started out by saying there's no need to go to the merits of the constitutional argument here but the but the standing argument to some extent sort of blend into the merits argument that piece that talks about arguably affected with a constitutional interest what does that mean arguably affected it's not a very exacting standard could you argue that even the individual who wants to go into the courtroom to record has an argument that he has a constitutional right to do that no it may be heavily circumscribed but at least there is an arguable labeled it only applies to floors where the court rooms in court related facilities are located but to the entire floor where they're located correct i know even there's even some signs if you look at the pictures i actually have some but if you look at the pictures there's an arrow that says this way there's no no cell phones or recording devices permitted beyond this point the stairwells say no recording devices permitted beyond this point it's not applied to the lobby the administrative or legislative offices are anywhere outside the building so it's very specific where this is applied it's the courtrooms it's the judge's chambers it's the clerk's offices it's the court related related facilities which include some hallways and some open spaces correct correct outside of where where witnesses me and that's explained i believe in the policy that and some of the case law too that you can't even it doesn't the protection of the witnesses doesn't end at the at the courtroom threshold you know they're discussing a lot of witnesses have to wait out in the hallways before they can come in and testify  know the distraction alone of recording devices you know i was at or detroit red wings game last week and the people standing up recording and taking pictures and just recording plays  was so distracting and that was at that was at a huge arena with you know with with a million thousands of people there in a courtroom and people expect their privacy people expect if you know people are already reluctant to participate and courtroom proceedings and if you start allowing people to record it would be such a disruption in the corps and the judges have the authority to regulate that especially where it doesn't implicate a first amendment right as it doesn't here in brief response one response to the council's argument she's indicated there's an atom of privacy in a courtroom i don't believe there's an element of privacy in a courtroom we that's the point of when you have public disputes and you bring them to the public forum it becomes no longer private it's been brought to the public forum for resolution so i don't think there's an expectation of privacy inside of a courtroom especially one that's open to the public with or even with or without recording in the case of i'm not a mysterious i'm sorry but about in the case where you have a man in this juries in certain cases well care argument would go to something like like that but hers is much broader but it met a situation where you do ever at least for that segment that would go towards them then i think that would be a permissible perhaps compelling interest for the government to be able to justify a strict scrutiny application to warrant a narrow tailoring of an interest to be able to circumvent or to circums e certain first amendment activities in that limited instance what about how frequently do you have people approach the bench and have a colloquy with the judge and the whole purpose of approaching the bandage to have a is so that it is not said i out to in the here in the hearing of the jury or other persons in the room isn't that a fairly traditional thing that we see in trials and i think that would be but however why would that be any different from a normal from a person sitting in the gallery to rick not be able to pick that aspect of it up there's not enough so that your argument is that everything that goes on in the courtroom is subject to the right of the public to see and view it and our questions regarding an anonymous jury or approaching the bench to have a colloquy with the court on a certain issue are retain examples of limitations within the court room of the access to the public to the information and activities that go on it seems to me that the existence of those this ga your argument in responding thank you the the again this case is not about access if if in that particular aspect a member of the public not those are not access examples you're sitting right there in the court room and and and someone else is arguing in front and says my approach the or and both attorneys come up and there is a private colloquy with the judge that is routine in trials so why doesn't that why isn't that problematic  your argument i'm not arguing and maybe i missed misled the court in my argument see i'm not arguing that a first person has a first amendment right to record every word of everything that's said in a particular courtroom setting  admission that there's already existence of limitations on first amendment rights within the courtroom what i am arguing is that where a person has been permitted where the public is permitted into the courtroom there should be the c right to record what they observe from the from their vantage point point of where they're at and that's what i'm arguing to the court today is it's not a matter of you know a member of the gallery can't run up to the for up front from the j the conference at the bench that you're referencing and record what that's what's being said in that particular aspect what i'm arguing is if a member of the public is sitting in the gallery and being able to observe what's going on they should be able to have the right to record because of the right to record again is opposed and then right as a first amendment rights the right to speech and signs so anyone who has under your argument a right to sit in the gallery has a right to sit in the gallery and hold a sign saying anything that they want to say that is consistent with the first amendment right how is that different that is different because that's an expression case and i said specifically today have disavowed this is not a active participant case this is a case of where my to my example of the anonymous jury you said the person should be able to record from their vantage point and you're saying i agree they should be able to run up at the bench and get in the middle of the huddle up there and record the private conversation the person going back sitting back who who only benefit by numbers they could take that technology and actually pierce that anonymity with technology again i guess i would respond to that by saying that may be a compelling reason to curtail first amendment but what the issue here is does it does the first amendment right exist at all in the courtroom and i what may be in a case of anonymous jury that could be a compelling reason with a nar tailored approach to be able to address that specific circumstance to limit the scope of first amendment activities as narrowly as possible what what we've done is as first amendment if i may just in a very broad sense the first amendment i believe requires a surgical scalpel these types of orders that and the one that's before you today from the second county courts is a blunderbuss gun approach to learning with you you say that your client sitting in the spectators gallery with  camera is really no different than the person sitting next to without a camera and hence your client with a camera should be able to photograph the proceedings you're your premise seems to this order because i guess the problem i have with that is that the witnesses already in the courtroom they're already before the public there already before their names are known their existence is no what they're testifying to can be reported out in the public i don't myself what i see this is that this is the this is an attempt to curtail a new technology that is that would provide for a basis for communication about what's going on in the courtroom later on and i you know i was your argument earlier both simultaneously but i guess i would point this court i think in answer to your question would be is the case the decision alvarez which again we have to think of the first amendment is not a very specific point in time but a spectrum and then over as they concluded that the act of making a recording is necessarily included within the first amendment activity because the right to then share that message would be largely ineffective if the act of making it is prohibited and so what your argument what you're what you're the question you put forward to me today would be is is there a difference between the two of them being the person is recording versus ones that's not what difference would it make if the person was holding a piece of paper and a pencil and drew the witness and knew their name and knew what they testified to why is the court afraid of modern technology and that's that's essential and that's of fear i'm not asking this court in a theoretical sense of why are we afraid of technology  if we're concerned about witness intimidation if if that is the concern that the big systems of a person is the existence of the public is going to mitigate the witnesses why do we have public trials what the existence of the public listening what that have an effect on we but at the constitution requires certain things have to be done in an open and transparent way that can be later recorded and i think recorded and discussed broadly and i'm asking what i'm asking this court to do is fifty years ago this argument could be here if the court had said i'm going to ban all pens and pencils in the courtroom you can't take notes because taking notes could be you could write down what the person says and then go out later and talk about it there's the same parallels just today the technology is different originally email is not protected by you there's no word email in the fourth amendment but today we recognize that e mail is part of because technology has changed the site is changed these are peer levels on the things we already know and