o 404688.
1202
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CENTER FOR
HUMAN
RIGHTS
83 Poplar Street, NW
Atlanta, GA 30303
Charles J. Ogletree, Jr.
Chair Emeritwi
Maureen F, Del Duca
Chair, Board of Directors
Stephen B. Bright
PresicieJH and Senior Counsel
Sara J. rotonchi
Executive Director
() 404-688.9440
www.scbr.org
January 9, 2017
Council of Superior Court Judges
18 Capitol Square, Suite 104
Atlanta, Georgia 30334
Re: Proposed Amendments to Uniform Superior Court Rule 22
Dear Council Members:
We thank you for inviting the Southern Center for Human Rights (SCHR) to
comment on the newest draft amendments to Rule 22, and for adopting several
of our recommendations to the amendments proposed in January 2016. While
the current draft moves the rule closer to transparency and protecting the
public'S right of access, new subsection (c) and a potentially unconstitutional
revision to (e)(l) significantly undermine this effOlt. We offer suggestions to
both provisions, and reiterate a few less critical recommendations made in our
July 2016 comment that have yet to be adopted. These recommendations are
reflected in the attached line edits.
A. Subsection (c) Invites Circuits to Violate the Uniform Superior Court
Rules.
Under this subsection, individual circuits may issue blanket bans on recording
devices in courtrooms in direct conflict with the Uniform Superior Court Rules.
There are two problems with this proposed language. First, any local rule
barring recording devices in courts would be void because it impennissibly
contravenes the Uniform Superior Court Rules promulgated by the Georgia
Supreme COUlt. See Ga. Unif. Super. Ct. Preamble ("It is the intention of these
rules and the policy of this State that these rules prevail over local practices and
procedures and shall be in force uniformly throughout the State."); Ga. Unif.
Super. Ct. R. 1.2(A) ("Any deviation from these rules is disallowed."); see also
Ga. Unif. Super. Ct. R. 1.2(E) ("courts may promulgate standing orders as to
matters not addressed by these uniform rules and which are not inconsistent
with a uniform rule . .. ") (emphasis added).
Two, this subsection would create a statewide hodgepodge, where neighboring
circuits have conflicting and less transparent rules on recording devices in their
courtrooms. In doing so, this subsection would undermine the "statewide
application" of the Uniform Superior Court Rules envisioned by our
Constitution and Supreme Court, and significantly reduce transparency and
public confidence in the working of those coutts that bar all access to recording
devices. See Ga. Unif. Super. Ct. R. 1.4; see generally Ga. Const. Art. III, VI,
~ IV(a) ("laws of a general nature shall have uniform operation throughout this
state and no local or special law shall be enacted in any case for which provision
has been made by an existing general law ... ") Because this subsection
violates the Uniform Superior COUlt Rules, creates a statewide crazy quilt of
Letter to the Council of Superior Court Judges
January 9, 2017
Page 2 of4

court access rules, and undermines the rules and our state's transparency goals, we suggest its
deletion.

B. Subsection (E)(l) Unconstitutionally Prohibits the Use of Recordiugs Outside of

Court.

Under one sentence of this subsection, attorneys and pro se litigants may only use recordings "in
litigating the case." This restriction conflicts with a long line of United States Supreme Court and
Georgia cases affirming a person's First Amendment right to disclose lawfully obtained court
information. See Butterworth v. Smith, 494 U.S. 624, 626 (1990) (First Amendment precluded
State from barring grand jury witnesses from revealing contents of testimony); Smith v. Daily
lviail Publishing Co., 443 U.S. 97, 103 (1979) ("if a newspaper lawfully obtains truthful
information about a matter of public significance then state officials may not constitutionally
punish publication of the information, absent a need ... of the highest order."); Cox Broad
Corp. v. Cohn, 420 U.S. 469, 496 (1975) ("Once true information is disclosed in public court
documents open to public inspection, the press cannot be sanctioned for publishing it."); Baskin
v. Hale, 337 Ga. App. 420, 425-428 (2016) (holding that a permanent injunction barring parties
from discussing litigation on social media violated the First Amendment). Moreover, restricting
the usage of recorded speech related to a particular purpose is a content-based restriction on
speech that is likely unconstitutional for that reason as well. Reed v. City ojGilbert, Ariz., 135
S. Ct. 2218 (2015); Thompson v. City ojClio, Ala., 765 F. Supp. 1066 (M.D. Ala. 1991)
(restrictions on tape recording not content neutral limit on freedom of speech).

Removing the proposed constraints on the use of recorded public proceedings will bring this
provision in line with clear constitutional mandates.

C. Subsection (E)(l) Unnecessarily Demands Written Requests of Pro Se Litigants.

This subsection shifts the written request to record requirement from attorneys appearing in
cOUlis where cOUli repOliers are absent, to pro se litigants appearing in the same courts. Yet the
need for recording devices in courts lacking court reporters is just as great, if not greater, for the
unrepresented defendant as it is for the represented defendant. As written, this requirement
needlessly burdens the courts' least educated, least skilled, and least resourced litigants. Rules
affecting unrepresented defendants should increase their access to the cOUlis, not diminish it. See
Johnson v. Pullman, inc., 845 F .2d 911, 914 (1Ith Cir. 1988) ("This COUli has repeatedly noted
the special care with which pro se litigants must be treated and noted that such litigants 'occupy
a position significantly different from that occupied by litigants represented by counsel. "')
(internal citation omitted). We recommend that pro se litigants, like attorneys, be exempt from
the written request requirement.
Letter to the Council of Superior Court Judges
January 9, 2017
Page 3 of4

D. The Council Should Revisit Provisions That Are Either Vague Or Impermissibly
Restrictive of Court Access.

As noted above, we appreciate the Council's inclusion of several SCHR suggestions into its
proposed amendments. What follows are recommendations initially raised in our July 2016
comments that should be incorporated into the Rule 22 amendments:

1. Subsections (b)(3) and (1)(2) unnecessarily prohibit the use of recording devices in "areas
immediately outside" com1room entrances and when the judge is off the bench, respectively.
As noted in our July 2016 comment, blanket restrictions on the use of recording devices in
areas adjacent to the courtroom do not advance courtroom decorum. Prohibiting recordings
of non-adjudicative communications would signal to the public that our courts have
something to hide. We suggest the Council eliminate these prohibitions because they weaken
public confidence in our com1s without advancing com1room decorum.

2. Subsection (g)(2)'s requirement that written requests to record be submitted "sufficiently in

advance" of a proceeding is no more specific than the previous draft's mandate that requests
be "timely." Without more specificity to the term, the public is left in the dark as to the
timing of a request to seek permission to record, and would allow a judge to arbitrarily reject
a request as untimely. As we stated in our previous comment, individuals should be allowed
to make verbal requests to record before the proceeding in question begins, or, alternatively,
submit written requests when practicable.

3. Though subsection (h)(1) requires judges to find "that there is a likelihood of harm" arising
from one or more factors in O.e.G.A. 15-1-10.1 before denying a request to record, this
language falls ShOl1 of the Georgia and federal standards requiring the identification of a
compelling or substantial harm. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596,
606-607 (1982) ("Where ... the State attempts to deny the right of access ... it must be
shown that the denial is necessitated by a compelling governmental interest") (emphasis
added); R. w: Page Corp. v. Lumpkin, 249 Ga. 576, 579 (1982) (requiring "clear and
convincing proof' that closing a hearing is necessary to avoid a "clear and present danger").
See also Presley v. Georgia, 558 U.S. 209, 213-214 (2010) (observing that circumstances
warranting courtroom closures "will be rare") (internal citation omitted). A compelling or
substantial justification for denying a request to record is particularly warranted in our state
because denied comi access in Georgia is "the very rarest of exceptions." R. w: Page Corp.,
249 Ga. at 579. Consistent with state and federal law, we ask the Council to require that
judges identify a "compelling" or "substantial" harm before denying a request to record.

The Council has made great strides in its effort to balance the public's right of access with
courtroom decorum and safety. The above suggestions will not undermine these dual objectives.
Rather, they reflect Georgia's strong commitment to government transparency while maintaining
the safety and decorum Georgians expect in their com1rooms. Adopting these recommendations
will make the Uniform Superior Court Rules consistent with our laws, and values.
Letter to the Council of Superior Court Judges
January 9, 2017
Page 4 of4

Respeci'% s~lbmitted,

( Z4C
Gerry Weber
LJLJ tMl-,
.w;~olhe
Uniform Superior Court Rule 22. Recording and Coverage of Judicial Proceedings
(a) Purpose. Unless otherwise reqtlired by statutory or decisional law or rule of the Supreme
COUlt, this rule specifies the permitted and prohibited uses of recording devices in a cOUltroom
and comports with the standards provided in O.C.O.A. 15-1-10.1 for determining how the use
of a recording device would impact the public interest and the rights of the parties in open judicial
proceedings. A COUlt must use reasonable means to advise courtroom visitors of the provisions of
this rule. A violation of this rule may be punishable as contempt. Violators may be removed or
excluded from the courtroom.

(b) Definitions. The following definitions apply in this rule:

(1) A "recording device" is a device capable of electronically or mechanically storing, accessing,

or transmitting sounds or images. The term encompasses, among other things, a transportable
computer of any size, including a tablet, a notebook, and a laptop; a smart phone, a cell phone or
other wireless phone; a camera and other audio or video recording devices; a personal digital
assistant (PDA); or other devices including those that provide internet access; and any similar
items.

(2) "Recording" means photographing, audio or video recording, retaining, broadcasting, or

disseminating. Nothing in this rule prohibits making written notes and sketches peltaining to any
judicial proceedings in the superior COUltS.

(3) "CoUltroom" means the room in which ajudge will conduct a COUlt proceeding-aHEl-tlte areas
immediately outside the comiroom entranees.

~)--RecoriliHg
dcyiees iaside a eOul'tJ'oom.----B)Y7fd,w-sf-the Court, the Sheriff, or the Supreme
GBmt of Georgia, reeonting devices Illay be f>rohihlted items that are not allowed inside a
eoartroolll.

In the cirellits that allow the possession sf a reeording deviee inside a courtroolll, the use and
possession of the device is limited to the following eonditiol..

(d) Jurors, witnesses and spectators. The following restrictions apply to use of recording devices
by jurors, including grand jurors and prospective jurors, by witnesses and by spectators.

(1) Jurors: Jurors must turn the power off to any recording devices while present in a courtroom
and while present in a jury room during the jury's deliberations and discussions concerning a case.
Jurors may use their devices for allowable purposes during breaks if authorized by the judge.
Jl)l'ors may not photograph, record, retain, broadcast, or disseminate proceedings.

(2) Witnesses: A witness must turn the power off to any recording device while present in a
courtroom, and may use a device while testifying only with permission of the judge. Witnesses
may not photograph, record, retain, broadcast, or disseminate proceedings.
(3) Spectators: All spectators while in a courtroom must turn the power off to any recording device
while present in a courtroom. No use of any recording device is permitted unless authorized by
the COUlt.

(e) Attorneys representing parties in a case. The following provisions apply to use of recording
devices in a courtroom by attorneys representing parties in a case. Any allowed use of a recording
device under this paragraph is subject to the authority of a judge to terminate activity that is
disruptive or distracting to a court proceeding, or that is otherwise contrary to the administration
of justice.

(1) Allowed uses: Attorneys and pro se litigants may use a recording device in a cOUltroom to store
or retrieve information, to access the Internet, and to send or receive messages or information. In
a criminal case, unless otherwise ordered by the cOlui, ifthere is no official court reporter making
a record of a proceeding, attorneys and pro se litigants may make audio recordings of proceedings
in a nondisruptive manner after announcing to the court and all patties that they are doing so. Pre
WT)(wtW5-mHshlpply to the co::rt in writing for permission to record. Such recoHHngs-may-he-Hsed
only-HHitigating tile ease.

(2) Prohibited uses: A recording device may not be used, without permission of the court, to make
or receive telephone calls or for other audible functions while COUlt is in session. Recording devices
must be silenced while court is in session.

(f) Approving use of a recording device for celebratory or ceremonial proceedings, or when
court is not in session. Notwithstanding other provisions of this rule, a person may verbally
request, and a judge or judge's designee may verbally approve, use of a recording device in a
courtroom to photograph or record a celebratory or ceremonial proceeding or to use a recording
when that courtroom is not in session.

(g) Other persons or organizations desiring to record. Where practicable. anyAfly other
persons or organizations, including representatives of the news media, desiring to record a COUlt
proceeding shall make application to the presiding judge on the form in Exhibit A following this
rule.

(l) Requirements/or submission 0/a request: The person or organization must submit the request
to the judge or to an officer of the COlUt designated to receive requests under this rule. The request
should address any logistical issues that may arise.

(2) Time limit/or submission a/a request: A person or organization must submit a request to record
no later than the beginning of the proceeding at issue. sufficiently in advance oftile proceeding to
allow the jadge to consiElcr-it-tH-a-timely-nlflHHffo

(3) Court action upon receiving a request: The cOUlt will notify the patties of its receipt of a request
for recording. Patties shall notify their witnesses. The judge will promptly hold a hearing if the
judge intends to deny the request or a portion of the request, or if a party, witness, or victim objects
to a request. The hearing under this paragraph shall be part of the official record of the proceeding.
(4) Time for a party, witness, or victim to object to a request: A patly, witness, or victim waives
an objection to a request for recording of a proceeding if the party, witness, or victim does not
object to the request in writing or on the record before or at the start of the underlying proceeding.

(h) Denial or limitation of recording. A properly submitted request for recording should
generally be approved, but a judge may deny or limit the request as provided in this paragraph. A
judge's decision on a request, or on an objection to a request, is reviewable as provided by law.

(1) Denial of recording. A judge may deny a request for recording, or may sustain a party's
objection, only after making specific findings on the record that there is a compelling (or
substantial) likelihood of harm arising from one or more of the following factors, that the harm
outweighs the benefit of recording to the public, and that the judge has considered more narrow
restrictions on recording than a complete denial of the request:
(A) The nature ofthe particular proceeding at issue;
(B) The consent or objection of the patlies, witnesses, or victims whose testimony will be
presented in the proceedings;
(C) Whether the proposed recording will promote increased public access to the comls and
openness of judicial proceedings;
(D) The impact upon the integrity and dignity of the court;
(E) The impact upon the administration of the court;
(F) The impact upon due process and the truth finding function of the judicial proceeding;
(0) Whether the proposed recording would contribute to the enhancement of or detract
from the ends of justice;
(H) Any special circumstances of the patlies, victims, witnesses, or other participants such
as the need to protect children or factors involving the safety of patlicipants in the judicial
proceeding; and
(I) any other factors affecting the administration of justice or which the COUll may
determine to be important under the circumstances of the case.

(2) Limitation ofrecording: Upon his or her own motion or upon the request of a party, victim, or
witness, a judge may allow recording as requested or may, after making specific findings on the
record based on the factors in paragraph (1), impose the least restrictive possible limitations as
follows:

(A) order that no one may photograph, record, retain, broadcast, or disseminate images or
recordings of a criminal defendant, a law enforcement officer, juror, witness, or victim;
(B) order that recording must effectively obscure the face and identity of a patly, juror,
victim, or witness, or that there be only audio recording of the testimony of a party, juror,
victim, or witness;
(C) prohibit recording of the testimony of a witness.

(i) Manner of recording. The judge should preserve the dignity of the proceeding by designating
the placement of equipment and personnel for recording the proceeding. All persons and affiliated
individuals engaged in recording must avoid conduct or appearance that may disrupt or detract
from the dignity of the proceeding.
0) Use of recording devices. A person must not use any recording device in a manner which
disrupts a proceeding.

(Ii) Pooling of recording devices. The COUlt may require pooling of recording devices if
appropriate. The persons or organizations authorized to record have the responsibility to
implement proper pooling procedures which meet the approval of the Court.

(I) Prohibitions. The following uses of recording devices are prohibited:

(1) l.,ra use a/-recarding Ikl'ices ;1'I;i,1c llurjuffge is afT/he beneh: A pel'soll--Illay ~,se a l'eeE>fEliHg
device in a cOHflfeo!n-on!y-wlten the juElgc is on the bench, Gnd use of EH'eJrding device mllst
teffninate when lllc j l:dge leaves tlle-benffi

(~D Recordings ofjurors: Recording devices must be placed to avoid video recording jurors in
any manner. Recordings of jurors' statements or conversations are also prohibited, except that the
jury foreperson's announcement of the verdict or questions to the judge may be recorded.

(~2) No attorney conferences: No person shall make a recording of any communication that
violates atto1'1ley-client privilege.

(4}) No bench conferences: No one other than the cOUlt reporter may record a bench conference.

(m) Recording not admissible as evidence. No recording of ajudicial proceeding made pursuant
to this rule may be used to modify or supplement the official COUlt record of that proceeding
without express permission of the judge pursuant to OCGA 5-6-41 (t).

(n) Disciplinary authorities. This rule does not apply to disciplinary authorities acting in the
course of their official duties.