March 7, 2007

The right to videotape public meetings.

Oh, how I love the New Jersey Supreme Court and its Chief Justice Zazzali, who not only has a cool name but also wrote this really cool opinion that starts with a quote from Patrick Henry -- "[t]he liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them" -- and holds that people have the right to videotape public meetings.

And I love our feisty hero, Robert Wayne Tarus, who insisted on recording civic events despite lots of bullying and criminal prosecution. He sued in federal court, alleging claims under the U.S. Constitution (First, Fourth, and Fourteenth Amendments) and the New Jersey Constitution and common law (false arrest, false imprisonment, malicious prosecution, and defamation), and lost on the federal grounds, which led to the discretionary dismissal of the state claims. Our hero started again in state court, alleging just the state common law and state constitutional claims, and he prevails!

The court finds a common law right (and doesn't need to reach the state constitutional grounds). Here's my handy cut-down of the opinion:
Today, hand-held video cameras are everywhere -- attached to our computers, a common feature in consumer still-shot cameras, and even built into recent generations of mobile telephones. The broad and pervasive use of video cameras at public events evidences a societal acceptance of their use in public fora.

Commensurate with the use of video recording in society is its intrinsic value in documenting events. “Videotaping is a legitimate way of gathering information for public dissemination and can often provide cogent evidence . . . .” Robinson v. Fetterman, 378 F. Supp. 2d 534, 541 (E.D. Pa. 2005). ...

Openness is a hallmark of democracy -- a sacred maxim of our government -- and video is but a modern instrument in that evolving pursuit. The Mayor and Borough ran afoul of that principle and violated the common law right to videotape by imposing unreasonable ad hoc restrictions. Arbitrary rules that curb the openness of a public meeting are barricades against effective democracy. The use of modern technology to record and review the activities of public bodies should marshal pride in our open system of government, not muster suspicion against citizens who conduct the recording.

In sum, we hold that, subject to reasonable restrictions, members of the public have a common law right to videotape municipal proceedings in New Jersey. Our conclusion is supported by an interwoven tapestry of jurisprudence and policy that demonstrates both the value of open government and the right to document governmental proceedings.
Hooray for the interwoven tapestry!

(Sometimes the lawprof is just a cheerleader.)

43 comments:

Impacted Wisdom Truth said...

"In sum, we hold that, subject to reasonable restrictions, members of the public have a common law right to videotape municipal proceedings in New Jersey."

So, does that mean if someone records on something other than videotape, that they again run afoul of the law? Or does that language cover digital recording by extension?

Simon said...

Impacted Wisdom Truth - surely it must. Just in the text Ann quoted, the court says "hand-held video cameras are everywhere -- attached to our computers, a common feature in consumer still-shot cameras, and even built into recent generations of mobile telephones." Those examples don't describe video tape devices: no computer or cell phone has a camera recording to video tape, they have a digital video camera recording to digital storage of some description (in the former case, a hard drive, in the latter, usually flash memory).

david said...

So the Blithering Idiot won't object when her students start showing up with videocams?

Gahrie said...

You know...I'm getting sick and tired of the rudeness of those on the Left ignoring the ignorance.

And these were the ones lecturing the Right on civility just a few days ago...

Gahrie said...

that should be:

... Left (ignoring the ignorance).

hdhouse said...

OH GOD I LOVE IT SO WHEN HISTORY REPEATS ITSELF!!!

And when history includes that saint of the right wing, Mr. Justice Scalia...

Thank you Lord. Thank you Lord.

http://www.usatoday.com/news/nation/2004-09-28-scalia-lawsuit_x.htm

Simon said...

HDH - Dolearn to read. In the instant case, the court held that "subject to reasonable restrictions, members of the public have a common law right to videotape municipal proceedings in New Jersey," emphasis added. That is to say, the common law of New Jersey affords members of the public the right to record municipal proceedings of incorporated municipalities of New Jersey. It does not announce a broad right to videotape all events anywhere to which the public are admitted, and particularly, it says nothing about procedings in Hattiesburg, VA.

hdhouse said...

ohhhh googling is sooo much fun:

http://www.rtnda.org/news/2003/031903.html

March 19, 2003

RTNDA PROTESTS DECISION TO BAN TELEVISION COVERAGE OF SUPREME COURT JUSTICE GETTING FREE SPEECH AWARD



Just when it can't get any better. Where is New Jersey when you need it!

hdhouse said...

Simon....please try and see the irony. Think outside the box a bit. You might like it. It won't like you but you might like it.

Simon said...

David - like HDH, you need to learn to read. Even without making any assumptions as to the target -- and thus geographic locale -- of your target, a university lecture is not a municipal proceeding, even if it is in New Jersey.

Simon said...

HDH - it's very comfortable here. I feel like Grommitt in that scene from The Wrong Trousers.

Cabbage said...

I chant "hooray!" as well, but I'd also like to point out that "supported [by the] interwoven tapestries" could easily be replaced by "eminated from the penumbra"

A. Harry said...

hdhouse: except that the text of the USA Today article kinda cuts against your point

"Scalia later apologized and said he would make it clear in the future that recording his remarks for the use of the print media would not be a problem."

There is no indication that Scalia had a hand in any limiting of taping

A. Harry said...

hdhouse: is there any indication that the Cleveland City Club is a public accomodation, or is it a private club and has a right to close its doors to the public if it so chooses?

hdhouse said...

Let me try this again. The New Jersey judge made an eleoquent point about the capture of public events..in that case meetings.

The Scalia episodes are so contrary to the artful observations found in the New Jersey opinion as to present the gamut of where things are on this issue. You don't find it amazing that under the general philosophy of the New Jersey opinion that Scalia accepts a free speech award that bars taping?

We just went through a political campaign with much the same thing whereever this administration spoke...as baring the public or certain parts of the public at a public gathering where they could either tape/record or whatever or for that matter hear was the norn.

Think of having an idiot savant who's gift is a photographic and perfect audio memory...a human digital camera with audio...would it not be amazing to have that person banned because he could perform the exact same duties as the device? Or what of a shorthand whiz who scribes every word with incredible acuracy? What of that?

This is a perfect example of why the constitution grows and adapts and isn't what your god-scotus has hollowed it out to be.

hdhouse said...

A. Harry:

What gives the press more rights in a public forum and in a public place than a private citizen?

As to Cleveland, if it is a private club in a strict sense, would then only invite reporters who are club members?

Simon said...

HDH:
"This is a perfect example of why the constitution grows and adapts and isn't what your god-scotus has hollowed it out to be."

This ruling explicitly disavows resting on Constitutional grounds, you idiot! "The court finds a common law right []and doesn't need to reach the state constitutional grounds," let alone federal constitutional grounds.

hdhouse said...

A. Harry said...
"There is no indication that Scalia had a hand in any limiting of taping "

Actually yes there is. Scalia had, up to that point, standing orders forbidding recording to which the Secret Service merely carried them out (there are numerous google items that discuss).

Also the settlement in Hattiesburg was extended to the press and to the press only.

hdhouse said...

simon...thnk broadly...think principle...the force is all around you..it vlows through you...use the force Simon.....

I can just imagine you at dinner. Three food groups all lined up and you eat clockwise around the plate..finishing all the peas before moving on to the starch and then the protien...drinking half a glass of water before and half after...

Methinks Ann puts stuff out here for people to broadly challenge thought not eviscerate the spirit.

gad.

Joe said...

Not only should all public meetings and court procedings be taped, so should all police interrogations.

(In the recent Libby trial, I found it appalling that the FBI isn't recording interviews with suspects.)

Joe said...

(I shouldn't have said "taped", I should have said, "video recorded")

Seven Machos said...

HD -- Try being civil, and not such a total jerk. Also, shouldn't you be happy when someone agrees with you?

If you can't be moderately civil, go away. You are one of the people who is ruining this place.

Seven Machos said...

Joe -- You should certainly ask that all of your police interrogations be taped, with an attorney present. And you shouldn't say a word without the tape and the lawyer.

dave said...

Let me try this again...

With these brownshirts? Dont' make me laugh!

Seven Machos said...

Hey it's Dave the Brownshirt Guy!

Pete the Streak said...

You're right, Seven. It just ain't the same without One Note dave.

Ann Althouse said...

Cabbage said..."I chant "hooray!" as well, but I'd also like to point out that "supported [by the] interwoven tapestries" could easily be replaced by "emanated from the penumbra""

Cabbage, you shouldn't have that problem. The court was using the common law and not interpreting any written text like a constitution. This ruling could be overcome by statute, unlike the privacy rights you're thinking about.

Wave Maker said...

In Massachusetts, citizens are statutorily permitted to audio or video record any public meeting anywhere.

And despite this, members of public boards say the most damning things. It's as if they don't even see the recording device sitting in front of them. For a lawyer practicing municipal permitting work, it is a godsend.

Steven said...

Oh, yes, right, HD. There's absolutely no difference in principle between recording matters that are not a matter of public record by law and which have no direct effect on the general public, and those that are a matter of public record by law and directly affect the general public through the operation of government and administration of law. How silly can anyone be to think there actually could be a difference!

Pogo said...
This comment has been removed by the author.
Pogo said...

Poor Steven!
Trying to use logic and reason on hdhouse. Doesn't Steven know only magical fairies, unicorns, and AlGore can wake hdhouse from his errors?

drew said...

As a resident of the Garden State, I can speak from some (albeit limited) experience about the operations of various governing boards and councils. Many will insist that they already record their meetings, which has apparently become the norm as a means of insitutitional self-defense. However, the manner in which these recordings are made, and the value of them, is a clear-cut example of why government in New Jersey is sooooo bad.

My own town council, and the local school board, "record" their meetings, using a 1970's vintage cassette tape recorder and one microphone positioned at the center of the council/board table. The council has seven members; the board has nine. Does anyone really think that the two "outermost" members of the panel are actually heard on the recording?

And what if the meeting lasts more than 30 minutes? Well, somebody is supposed to monitor the time and flip the tape, but then any meeting of longer than 60 minutes becomes a problem.

When members of the public seek to record the meetings themselves (in one situation, a resident who is a professional recording engineer, and who volunteered to do it for nothing), the board/council takes the position that the meeting is already being recorded, and that any further "intrusions" into the panel's deliberations would be destructive. When confronted with the usual (and factual) response that the "official" recording is useless, the board/council reverts to government-speak; i.e., it's already recorded officially, and if you don't like that recording, tough toenails.

I welcome this ruling as well -- now if only the blowhards on the various boards and councils would stop to realize that their actions may be subject to some useful and practical social and legal ridicule, they might actually do something worthwhile for a change.

And don't get me started about the maroons in the "public" audience who use the opportunity to grandstand about their usually rather parochial issues. I used to think that the epitome of stupid question-asking was highlighted at various Supreme Court Nomination hearings, but our congress-critters have nothing on our neighbors when it comes to making a speech sound like a question, and ending up with a dissertation in search of a logical subject.

hdhouse said...

Steven and pogostick...

I didn't say what you attribute to me. Since you are confused:

Any time an elected or appointment person who speaks from his/her office (try not to be too literal - i don't mean from behind the desk) speaks about matters of the office or his/her approach to it, it is important to someone..few or many.

If electronic devices record the moment for non-attendees or to preserve the record or for a number of reasonable uses including accuracy, I fail to see the difference or the exceptions claimed between utterances that are normally on the record v. not part of the normal public record.

Otherwise there is a deniability factor built into the system....if politician "A" changes the zoning board requirement on the fly, there it is - a public record and not a "he said, she said".

Your distinction runs against your normal vilification of the NYTimes for instance where you are sure that they "get it wrong" or only report selectively - yet you would deny a tool that would aide in accuracy and deny the citizens a tool to verify the reporter's accuracy.

Tully said...

I see hdh is having more fantasies about dinnertime, with that ghostly voice in the background telling him to "use the forks..."

On one governmental commission I serve on they used the 1970's era cassette tapes until I donated a digital voice recorder. There was resistance at first. I'd already started bringing my own to resolve ongoing discrepancies in the minutes. After the first protest from the agency they were reminded by legal that it was, after all, an open public meeting under our local Open Meetings Act. Then they realized that CD's and DVD's are a lot cheaper than cassette tapes. :-)

Kudos to the citizen who stuck to his guns. I wish he'd asserted the 1st Amendment press rights as well. He has just as much right to record open public meetings as any member of the press does.

A. Harry said...

hdhhouse asks?

"What gives the press more rights in a public forum and in a public place than a private citizen?"

I'd say nothing. Part of what I see as a recent problem is that many in the press think that they DO have more rights than private citizens.

hdhouse again:

"Actually yes there is. Scalia had, up to that point, standing orders forbidding recording to which the Secret Service merely carried them out (there are numerous google items that discuss)."

Again, the article give no indication that was Scalia's policy. If you are using that article as your basis of discussion, it should support your position. That article is totally neutral. Also again, not a "public meeting"

What would a more appropriate concern is that Scalia (and most of the SCOTUS) limit any taping of their public proceedings.

hdhouse said...

a. harry -

i think that if you google scalia and public appearances you will find that his policy was no electronic taping of him. to the extent that someone can photoshop or audio edit just about anything on earth, his point is well taken. the argument would then be to create multiple sources (electronic) of an event so it would have to be a conspiracy to morph his remarks.

I was not taking the Hattiesburg article as a source but if you read up on it, you will note that the Secret Service stated its reason for confiscation and/or erasure as Scalia's policy.

as to the press having any more or any fewer rights than an ordinary citizen at a public gathering..you note that an issue to you is that the press has been assuming rights above the ordinary citizen while i would argue just the opposite, the ordinary citizen has had restrictions arbitrarily placed on him at public gatherings that feature elected officials - the bush campaign stops as an example.

i for one was barred from hearing remarks by my president in a public space (told to leave or face arrest) for failure to sign a loyalty oath and for refusing to give up my digital camera.

i view this all as part of the same issue..and will admit i am wrong if there is a convincing legal authority present.

Wayne said...

Comment was made that this is a NJ state ruling and does not affect other states. The NJ court opinion cites case law from several states.

Although the NJ ruling obviously has no legal teeth in other jurisdictions, it will probably be referred to should a comparable situation arise elsewhere.

hdhouse said...

in any event it is nice to see a judge write with an interesting style.

MrTideman said...

Here in New Hampshire we'll have to try this at the next local Zoning Board meeting when they tell the next customer that they can't build on a Class VI or private road because it "goes against the spirit of the ordinance" B.S. when RSA Ch. 674:43,I(e) of 2004 gets rid of these tyrant orders. www.state.nh.us Thanks Ann, and see you over at http://questforfairtrialinconcordnh dot blogspot.com -- Yours truly. P.S. We live in an Art. IV, Sec. 4 U.S. Const. Republic.

Chris O'Brien said...

I think the judge has a cool name too.

Zazzali would be an awesome word to get in Scrabble. With a Triple Word Score underneath.

.....What? Why are you all looking at me funny?..I'm just saying is all...

Tully said...

LOL. I'd love to see you try to play "Zazzali" in Scrabble.

No cheating! :-)

Tully said...

"What gives the press more rights in a public forum and in a public place than a private citizen?"

Echo a.harry. Absolutely nothing.

gyy said...

Are you within of a hurry to discover a reputable wow gold providing internet website now? Yes! I think several wow avid gamers are looking on the net to discover a affordable wow gold providing site.However, they do not know which website is worth trusting. I am good you will find out a tremendous amount of wow gold providing internet web pages on the net in circumstance you lookup just the essential word wow gold or affordable Cheap WOW Gold. There are so several sites, but can you already know which one is trustable.