Denial of courtroom access because you didn’t fill out a form

SCPA Attorney Jay Bender
By SCPA Attorney Jay Bender

South Carolina has a distinctive constitutional provision that states that all courts shall be public.  Art. I, §9 S.C. Constitution.  The Supreme Court of South Carolina has consistently ruled that this constitutional provision, as well as the First and Fourteenth Amendments to the U.S. Constitution, allow the public and the press to attend court proceedings.

Sometimes that message doesn’t reach the guy at the door, and in some instances, the judge on the bench.  I’ll give two recent examples and a recommendation for how to counter the problem.  This piece does not cover a situation where a reporter is in a courtroom and a motion is made to close the courtroom.  That will be my next installment.

Under the leadership of John Shurr, the late, great AP Bureau Chief for South Carolina, the Supreme Court of South Carolina adopted Rule 605 of the S.C. Appellate Court Rules to allow “Broadcasting, Television, Recording or Photographing Court Proceedings.  I recommend that anyone wishing to shoot video or take still photos, whether with your smart phone or more traditional equipment read the rule.  It has some requirements are ignored at one’s peril.

One provision in the rule is that anyone wishing to shoot video or take stills must submit an application to the trial judge in advance of the proceeding.  The form itself is provided in Appendix B to the Appellate Court Rules.  The rules of court are online at www.sccourts.org.

You would think that the title of the rule specifying that it will apply in those circumstances where video or still photography is sought for court proceedings would be sufficient to allow a bailiff or a judge to understand the intent of the rule.  Well, not always.  In two recent cases, one judge and one bailiff outside a courtroom insisted that any reporter wishing to attend a court proceeding submit an application to the court for permission to attend. I have spoken with the Director of Court Administration about the episodes in hopes that some training will be of assistance in the future.  The Director is Tonnya Kennedy Kohn, a former managing editor of The State so I have confidence that she recognizes the problem.

That is the longer term fix.  In the short term, I’d suggest that reporters print a copy of Rule 605 to carry with them when going to court.  If someone says you may not attend the court unless you submit an application, I’d suggest you politely show the person the rule.  I’d suggest you point to the title, point to subsection (b), and point to subsection (f) to try to create an understanding that the rule imposes no limitations on the right of a reporter to attend a court proceeding armed with the traditional reporting tools of a notebook and pencil.

If that doesn’t work, test the promise of Court Administration that the hiring of a PIO is designed to facilitate resolution of problems encountered covering courts.  The name and number of the PIO was in a recent Bulletin (Ginny Jones at 803.734.1800).  If that doesn’t work, call your paper’s attorney, Taylor Smith or me so we can undertake an educational effort.

Jay Bender is a retired University of South Carolina professor and media lawyer who represents the S.C. Press Association and its newspapers.

Other recent columns