Editor’s note: This is a column Jay Bender wrote in 2013.  Little has changed and Jay says this column is must reading.  An appropriate photo of Jay is also available.

I remember the first television set in my family home.  My children never knew a home without a television set, and they might not remember the installation of the first computer.  My grandchildren haven’t known a home without computers.

When you grow up with something always being there, it becomes “just the way it is.”  And once something is characterized as “just the way it is,” it is sometimes possible to act or fail to act in ways that will result in a loss.  For my children, since the computer in the house quickly became a fixture, it was treated with no special reverence.  That explained crumbs and drinks spilled on the keyboard and elsewhere.

Prior to 1993 still and video cameras were not allowed in state courts in South Carolina.  Through the efforts of John Shurr, then AP bureau chief for South Carolina and Pete Poore, then of South Carolina ETV, and pitches made to three successive Chief Justices of the Supreme Court of South Carolina, a court rule was adopted governing coverage with cameras of court proceedings.  The rule is Rule 605 of the South Carolina Appellate Court Rules and can be found on the website of the S.C. Judicial Department here.

The rule starts with the proposition that “broadcasting, television, recording, or taking photographs in the courtroom and areas immediately adjacent thereto during session of court or recesses between sessions is prohibited.”  Fortunately the rule contains exceptions to the prohibition to allow still and video camera coverage.

The decision to allow camera coverage is within the control of the presiding judge, and no appeal is available from a decision to prohibit camera coverage.

In the years since the rule was adopted judges have gotten more accustomed to having cameras in court proceedings, but the repeated failure of journalists to comply with the rule’s provisions continues to jeopardize this access.

The first thing you need to know is that the rule requires “reasonable notice” for camera coverage.  Some judges want the notice to be in writing on the form adopted by the Supreme Court and included as Appendix B to Part VI of the appellate court rules.  If you know in advance you want to cover a specific proceeding, be in touch with the judge in advance of the proceeding to determine what needs to be done in terms of notice.

This form can also be found on SCPA’s website here.

There are limits on the number of cameras that can be allowed, and the positioning of the camera is subject to approval by the presiding judge.  Conversations between clients and attorneys may not be recorded, and photographs of jurors are prohibited.

No activity by the photographers or videographers is to distract from or interfere with the proceeding.

If more than the allowed number of photographers and videographers seek access, and the judge enforces the limit, all photos and videos are to be pooled to any other news organization requesting photos or video.  News organizations are to resolve any pooling dispute, and judges will not participate in the resolution of these disputes.  The common response by a judge in the face of a dispute as to who is allowed to provide camera coverage is to throw out all the cameras.

The rules specify lighting and sound limitations and even set a dress code.  In recent years I have noticed a number of photographers and videographers displaying a complete disregard of or awareness of the rules governing conduct.  Do yourself and your colleagues a favor.  Read the rule.  Then comply with it.

Unless you are using a camera, a journalist does not need permission to attend a court proceeding, and the press may not be excluded from the courtroom unless the courtroom is closed to all following notice and a hearing on the closure motion.  Some judges have been confused on this point and think that they have the authority to require journalists to seek permission to attend court proceedings.  The press and the public have a constitutional right to attend court proceedings, but not a constitutional right to bring a camera.

During a recent murder trial in Columbia reporters were routinely tweeting from the courtroom.  The rule is silent on the use of this technology, but the tolerance of judges seems to be increasing.  A word of caution here, the Chief Justice of the Supreme Court of South Carolina has issued an order applicable to every courtroom in the state requiring cell phones to be set on silent mode in the courtroom and prohibiting calls from being taken or made in the courtroom.  If you take a phone in with you, make sure it is silent during the proceeding.  Otherwise your phone may be confiscated and you held in contempt of court.

(Update note: some judges will allow reporters/photographers to use cell phones, but you need permission ahead of time for taking photos, tweeting, etc.)

The camera coverage rule was adopted under the administration of Chief Justice David Harwell who said at the time of the adoption of the rule that camera coverage was approved in order to assist the public in seeing how their courts performed the import tasks assigned to courts in a democracy.  It would be a shame if the failure to read and follow the court rule resulted in widespread banishment of cameras. 

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