Court of Appeals of Indiana | Opinion 35A02-1705-CR-1060 | October 31, 2017 Page 1 of 13

ATTORNEYS FOR APPELLANT

Margaret M Christensen

Bingham Greenebaum Doll, LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Stephen R. Creason

Aaron T. Craft

Deputy Attorneys General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

WPTA-TV,

Appellant-Intervenor,

v.

State of Indiana,

Appellee-Plaintiff,

And

John C. Mathew,

Appellee-Defendant.

October 31, 2017

Court of Appeals Case No.

35A02-1705-CR-1060

Appeal from the Huntington 

Circuit Court

The Honorable Thomas M. Hakes, 

Judge

Trial Court Cause No. 35C01-

1605-F3-96

Riley, Judge.
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STATEMENT OF THE CASE

[1] Appellant-Intervenor, WPTA-TV, appeals the trial court’s grant of its request 

for a digitally recorded version of a publicly available court record while 

limiting WPTA-TV’s use of the audio record and barring its broadcast or 

dissemination. 

[2] We affirm.

ISSUES

[3] WPTA-TV presents us with three issues on appeal, which we consolidate and 

restate as the following two issues: 

(1) Whether the trial court abused its discretion when it applied Indiana 

Judicial Rule 2.17 to limit the use of an audio recording of a sentencing 

hearing by a news media organization; and 

(2) Whether the trial court’s prohibition to broadcast the audio recording of 

a judicial proceeding violates the First Amendment to the United States 

Constitution.

FACTS AND PROCEDURAL HISTORY

[4] On May 27, 2016, the State filed an Information, charging John C. Mathew 

(Mathew) with rape, as a Level 3 felony; sexual battery, as a Level 6 felony; and 

two Counts of battery, as Class B Misdemeanors. The State subsequently 

amended the rape charge to a charge for sexual battery, as a Level 6 felony. 

After Mathew pled guilty to both sexual battery Counts, the State dismissed the 
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misdemeanor charges. On April 17, 2017, the trial court conducted a 

sentencing hearing during which the trial court imposed a two-year sentence on 

each Count. The trial court ordered the sentences to run consecutive to each 

other and suspended the entire sentence to probation with Mathew serving two 

years on “electronic monitoring/home detention” as a condition of probation. 

(Appellant’s App. Vol. II, p. 5). Mathew was required to register as a sex 

offender.

[5] On April 18, 2017, WPTA-TV submitted an access to public records request to 

receive the “audio recording of sentencing hearing[;] documents (electronic or 

otherwise) submitted as evidence[; and] private letters submitted on behalf of 

victim and defendant[.]” (Appellant’s App. Vol. II, p. 11). On April 20, 2017, 

the trial court issued its Order Limiting the Use of Court Record and Barring Its 

Broadcast or Dissemination, concluding in, pertinent part, as follows:

2. The [c]ourt is required to provide the record as requested.

3. The requesting person may not broadcast the record, subject 

to the contempt power of this [c]ourt.

4. The requesting person may not alter, add, delete or replace 

any part of the record provided.

(Appellant’s App. Vol. II, p. 7). 

[6] On May 2, 2017, WPTA-TV filed its verified motion to intervene and 

reconsider the trial court’s order of April 20, 2017, claiming that the order 
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violated the provisions of Indiana Administrative Rule 9(G). Two days later, 

on May 4, 2017, the trial court granted WPTA-TV leave to intervene and 

indicated that it would rule on its request for reconsideration under Indiana 

Trial Rule 60(D). On May 17, 2017, the trial court issued its Order, denying 

WPTA-TV’s motion to reconsider, and finding, in pertinent part, that:

[WPTA-TV] received as per their request the documents and CD 

on April [20], 2017. This was in proper compliance with 

Administrative Rule 9(D). The providing of the requested items 

gave [WPTA-TV] the ability to inspect and copy a court record 

which is the definition of Public Access as found in 

Administrative Rule 9(C)(6).

The [c]ourt then, as required by Administrative Rule 9(D)(4) 

issued the order limiting the use of the record. [WPTA-TV’s] 

entire argument in its Motion to Reconsider revolves around 

Administrative Rule 9(G) and [WPTA-TV’s] argument that the 

[c]ourt in prohibiting the use and dissemination of the Record 

violates the provisions of Rule 9(G).

The [c]ourt followed Administrative Rule 9(D)(4) and examined 

Judicial Conduct Rule 2.17 which states in part: “Except with 

prior approval of the Indiana Supreme Court, a Judge shall 

prohibit the broadcasting, televising, recording or taking photos 

in the courtroom . . .” The limit placed upon [WPTA-TV] is in 

compliance with this rule. Broadcasting all or parts of a court 

record is no different than [WPTA-TV] making their own 

recording and then broadcasting it . . . an act that is not allowed 

by the Rule.

Copies of all documents requested were promptly provided but 

limited in use by the [c]ourt following the dictates of 

Administrative Rule 9(D)(4).
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(Appellant’s App. Vol. II, p. 8).

[7] WPTA-TV now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Judicial Rule 2.17

[8] Focusing on the interplay between Administrative Rule 9(D)(4) and Judicial 

Rule 2.17, WPTA-TV contends that the trial court’s interpretation to allow 

access but, at the same time, prohibit the use or dissemination of the recording, 

renders that same access to the record meaningless. As Judicial “Rule 2.17 is 

concerned with contemporaneous recordings in courtrooms, not ex post facto

dissemination of previously-recorded testimony[,]” WPTA-TV maintains that 

the Rule cannot serve as a proper basis for denying its motion to reconsider and 

upholding the trial court’s order limiting the use and dissemination of the 

courtroom’s record. (Appellant’s Br. p. 22). 

[9] “Pursuant to the inherent authority of the Indiana Supreme Court and pursuant 

to Indiana Code section 5-14-3-4(a)(8),” Administrative Rule 9 governs the 

public access to, and confidentiality of, court records. Starting from the 

presumption of open public access to court records, the administrative Rule’s 

objective is “to provide maximum public accessibility to [c]ourt [r]ecords,” 

while “taking into account public policy interests that are not always fully 

compatible with unrestricted access.” (Admin.R.9(A) cmt). In accordance 

with these purposes, Administrative Rule 9(D) regulates the general access to 

court records, and provides that:
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(1) A [c]ourt [r]ecord is accessible to the public except as 

provided in section 9(G).

(2) The rule applies to all [c]ourt [r]ecordings, regardless of the 

manner of creation, method of collection, form of storage, or 

the form in which the record is maintained.

(3) If a [c]ourt [r]ecord, or portion thereof, is excluded from 

public access, there shall be a publicly accessible indication of 

the fact of exclusion but not the content of the exclusions. 

This sub-section (3) does not apply to court proceedings, or 

[c]ourt [a]dministrative [r]ecords which are confidential 

pursuant to law.

(4) A [c]ourt may manage access to audio and video recordings 

of its proceedings to the extent appropriate to avoid 

substantial interference with the resources or normal 

operation of the court and to comply with Indiana Judicial 

Conduct Rule 2.17. This provision does not operate to deny 

to any person the right to access a [c]ourt [r]ecord under Rule 

9(D)(1).

[10] Accordingly, establishing the parameters of WPTA-TV’s access and use of the 

audio recording of the sentencing hearing, the trial court turned to Judicial Rule 

2.17 for further guidance. Judicial Rule 2.17, which regulates the broadcasting 

of proceedings, states:

Except with prior approval of the Indiana Supreme Court, a 

judge shall prohibit broadcasting, televising, recording, or taking 

photographs in the courtroom and areas immediately adjacent 

thereto during session of court or recesses between sessions, 

except that a judge may authorize:
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(1) The use of electronic or photographic means for the 

presentation of evidence, for the perpetuation of a record, or 

for other purposes of judicial administration;

(2) The broadcasting, televising, recording, or photographing of 

investitive, ceremonial, or naturalization proceedings;

(3) Graphic or electronic recording and reproduction of 

appropriate court proceedings under the following conditions:

a. The means of recording will not distract participants or 

impair the dignity of the proceedings;

b. The parties have consented, and the consent to being 

depicted or recorded has been obtained from each 

witness appearing in the recording and reproduction;

c. The reproduction will not be exhibited until after the 

proceeding has been concluded and all direct appeals 

have been exhausted; and

d. The reproduction will be exhibited only for 

instructional purposes in educational institutions.

Under Indiana Administrate Rule 9(D), the requested audio recording of the 

sentencing hearing was a public court record which should be made available—

and was—to WPTA-TV. In accordance with Administrative Rule 9(D)(4), the 

trial court managed the access to its audio recording in compliance with 

Indiana Judicial Rule 2.17. Implicitly concluding that WPTA-TV’s request fell 

outside the three exceptions listed in the Rule, the trial court granted a copy of 
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the recording to WPTA-TV, but prohibited its broadcast as mandated by the 

Rule’s preamble.

1

 

[11] WPTA-TV now attempts to circumvent the application of Judicial Rule 2.17 by 

contending that the Rule is only applicable to the contemporaneous recording 

of the proceedings and not to the ex post facto broadcasts of a hearing. We find 

WPTA-TV’s interpretation of Judicial Rule 2.17 too narrow. Witnesses and 

other actors in the current courtroom hearings proceed with the understanding 

that although their words are recorded, these recordings are used solely within 

the judicial realm, thereby protecting the effectiveness, reliability, and fairness 

of the judicial system. Permitting the audio of a proceeding to be broadcast to 

the public in general by way of any type of media, would have an intimidating 

impact, not only on the behavior of the witnesses and other actors—causing 

possible fear and reluctance to testify—but also on the openness and candidness 

of any trial testimony. We perceive no difference between the effect of 

broadcasting a hearing ex post facto versus the contemporaneous dissemination 

of the proceeding. As we believe that “the atmosphere essential to the 

preservation of a fair trial—the most fundamental of all freedoms—must be 

maintained at all costs,” we affirm the trial court’s decision, prohibiting the 

 

1 A review of the very limited case law involving the application of Judicial Rule 2.17 indicates it has become 

standard practice for trial courts to require the party requesting an audio recording of a court proceeding to 

sign an “Acknowledgment,” agreeing not to broadcast the recording in any media whatsoever. See Clements 

v. Altice, 48 N.E.3d 389 (Ind. Ct. App. 2016) (unpublished memorandum opinion); Clements v. Hanley, 20 

N.E.3d 924 (Ind. Ct. App. 2014) (unpublished memorandum opinion).
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“[b]roadcasting [of] all or parts of a court record.” Estes v. Texas, 381 U.S. 532, 

540, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); (Appellant’s App. Vol. II, p. 8).

II. First Amendment of the United States Constitution

[12] Next, WPTA-TV contends that the trial court’s Order violates the First 

Amendment to the United States Constitution as it constitutes a “gag order”

intended to muzzle the media and thus amounts to an impermissible prior 

restraint on free speech. (Appellant’s Br. p. 13). 

[13] The First Amendment, made applicable to the States through the Fourteenth 

Amendment, provides that “Congress shall make no law . . . abridging the 

freedom of speech . . .” U.S. Const., Amend. I. A prior restraint is a term used 

to describe “administrative and judicial orders forbidding certain 

communications when issued in advance of the time that such communications 

are about to occur.” Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 

2766, 2771, 125 L.Ed.2d 441 (1993). The special vice of a prior restraint is that 

“communication will be suppressed, either directly or by inducing excessive 

caution in the speaker, before an adequate determination that it is unprotected 

by the First Amendment.” Pittsburgh Press Co. v. Pittsburgh Commission on Human 

Relations, 413 U.S. 376, 93 S.Ct. 2553, 2561, 37 L.Ed.2d 669 (1973). The 

common thread running through free speech cases is that prior restraints on 

speech and publication are the most serious and the least tolerable infringement 

on free speech rights. Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 

2791, 2803, 49 L.Ed.2d 683 (1976). However, the protections the First 
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Amendment affords against prior restraints are not triggered unless there is state 

action. Alexander, 509 U.S. at 550. Although a prior restraint is not per se 

unconstitutional, it comes to an appellate court with a heavy presumption 

against its constitutional validity. Mishler v. MAC Systems, 771 N.E.2d 92, 95 

(Ind. Ct. App. 2002). 

[14] Despite WPTA-TV’s attempt to define the trial court’s Order as a gag order, we 

are not persuaded. The trial court’s Order does not prohibit WPTA-TV from 

reporting on Mathew’s sentencing hearing and using the transcript of the 

hearing in its publication or broadcast; rather the trial court only prohibited the 

dissemination of the audio recording of the hearing to the public at large while 

leaving all other forms of communication available. Accordingly, the issue here 

is not a complete ban on a publication by the press; rather WPTA-TV’s 

constitutional claim turns on the breadth of the First Amendment’s “implicit 

guarantee against undue interference with the acquisition of knowledge.” 

LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-22, at 976 (2d 

ed. 1988). “The First Amendment is concerned with fostering ‘indispensable 

conditions of meaningful communication,’ but this protection must be applied 

with ‘discrimination and temperance’ and in consideration of possible 

encroachment on other important interests.” In re WTHR-TV, 693 N.E.2d 1, 15 

(Ind. 1998) (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 587-88, 

100 S.Ct. 2814, 2833-34, 65 L.Ed.2d 973 (1980) (Brennan, J., concurring)). 
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Freedom of the press, hard-won over the centuries by men of 

courage, is basic to a free society. But basic too are courts of 

justice, armed with the power to discover truth. 

Garland v. Torre, 259 F.2d 545, 548 (2d Cir. 1958). Both criminal defendants 

and society in general have a major stake in accurate, informed, and fair 

adjudication of criminal proceedings. In re WTHR-TV, 693 N.E.2d at 15. 

[15] As such “the government may impose reasonable restrictions on the time, 

place, or manner of protected speech, provided the restrictions are justified 

without reference to the content of the regulated speech.” State v. Economic 

Freedom Fund, 959 N.E.2d 794, 801-02 (Ind. 2011). The principal inquiry in 

determining whether a rule is content-neutral or content-based is the state’s 

purpose for enacting it. Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 

2746, 105 L.Ed. 661 (1989). “A regulation that serves purposes unrelated to the 

content of expression are deemed neutral, even if it has an incidental effect on 

some speakers or messages but not others.” Id. In essence, “[g]overnment 

regulation of expressive activity is content neutral so long as it is justified 

without reference to the content of the regulated speech.” Id. Here, we find 

Judicial Rule 2.17 to be content neutral as it applies to all audio recordings of 

hearings and proceedings regardless of their content or the message conveyed. 

[16] Nevertheless, content-neutral speech regulations can burden important First 

Amendment interests because, by restricting speech, they limit the marketplace 

of ideas and quell public debate. See, e.g., City of Ladue v. Gilleo, 512 U.S. 43, 55, 

114 S.Ct. 2038, 129 L.Ed.2d 36 (1994). To balance these competing interests, 
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the United States Supreme Court has held that content-neutral laws are subject 

to an intermediate level of scrutiny, which affords the government more leeway 

in meeting its legitimate regulatory objectives. Turner Broad. Sys., Inc. v. FCC, 

512 U.S. 622, 662, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). A content-neutral 

law will be upheld under intermediate scrutiny only if it is narrowly tailored to 

serve a substantial governmental interest and leaves open adequate alternative 

channels of communication. Id. “To be narrowly tailored, a statute need not 

employ the least restrictive or least intrusive means of accomplishing the 

governmental purpose.” Ward, 491 U.S. at 798. “Rather, the requirement of 

narrowly tailoring is satisfied so long as the . . . . regulation promotes a 

substantial governmental interest that would be achieved less effectively absent 

the regulation.” Id. at 799. Judicial Rule 2.17 is aimed at the protection and 

preservation of a fair trial by reducing the intimidating impact the broadcast of 

an audio recording would produce on witnesses and other judicial actors. It is 

narrowly-tailored to only apply to courtroom recordings, while it does not 

restrict the exhibition of recordings where these governmental interests are not 

implicated, such as ceremonial functions. By limiting the scope of Judicial Rule 

2.17 to merely those instances where the governmental interest is strongest, the 

state judiciary has narrowly tailored the Rule to advance its legitimate interest 

without overly burdening free expression while, at the same time, providing 

ample alternative channels of communication of the information contained in 

the recordings by making the transcripts of the hearing available. Accordingly, 

WPTA-TV fails on its claim that Judicial Rule 2.17 runs afoul of the First 

Amendment.
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CONCLUSION

[17] Based on the foregoing, we hold that the trial court properly applied Indiana 

Judicial Rule 2.17 to limit the use by a news media organization of an audio 

recording of a sentencing hearing; and this prohibition does not violate the First 

Amendment to the United States Constitution.

[18] Affirmed.

[19] Robb, J. and Pyle, J. concur