Livestream leads to ‘leaked recordings, chilled expression’

Allowing the public to livestream court proceedings will lead to leaked recordings, chilled courtroom expression, and impede witness testimony, the Los Angeles County Superior Court told the state Supreme Court Friday in response to a petition to restore remote access.

In October, USA Today asked the state Supreme Court to grant review of its petition asking the LA court to restore the remote access program it created during the pandemic. The trial court pulled the plug on the program after an audio of Britney Spears' testimony in her conservatorship case wound up on YouTube in violation of the judge's order.

Answering the petition Friday in a 38-page brief, the court's attorney, Robert A. Naeve of Jones Day, said not only would livestreaming disrupt courtrooms, it would chill speech.

"It would mean that courts cannot draw distinctions between courtroom spectators and participants -- every spectator now has the constitutional right to sit alongside the judge," he wrote.

During the pandemic, the Superior Court created two programs for remote access: LACourtConnect for litigants, attorneys, witnesses, and interpreters, and the Remote Audio Access Program for the public and media to listen to nonconfidential hearings. The idea was to make observing court hearings safer during the pandemic and limit the spread of COVID-19.

However, a day after Spears gave testimony in her conservatorship case in June, the court canceled the public program, citing a leaked recording of the speech on YouTube.

On Aug. 26, USA Today, represented by Woodland Hills attorney Christopher C. Melcher of Walzer Melcher LLP, asked the court to reinstate access or provide other remote access to the next Spears hearing the following month. Judge Brenda J. Penny, who presided over the Spears matter, denied the request. USA Today appealed that decision.

Responding Friday, Melcher said he was surprised the Los Angeles County Superior Court would hire Jones Day to defend its decision to pull the plug on the public's right to know what is happening in its courthouses.

"The court presumably has paid the vendor of [remote access] and is letting that service sit idle because it was upset that someone recorded a hearing in one case. It was an extreme overreaction," Melcher said.

Once the court rolled out remote access for the public and media that became a public benefit that it can't take away without passing constitutional scrutiny, he said.

"The court's answer to the petition for review states that no constitutional right is implicated because the court is providing seats in the courtroom," he said. "Historically that is all that was needed. However the LA Superior Court provided access to the public to an audio feed for all of its core proceedings. It cannot take that right away without passing strict scrutiny under the constitution."

Because a remote access program can still be accessed by lawyers, "the court also creates two classes, one which allows access and the other to which it has denied access," he continued. "That is a violation of equal protection in my view."

Responding to Melcher's "two class" argument, Naeve said a threshold requirement for asserting an equal protection claim is showing that similarly situated parties are treated dissimilarly.

"In this case, courtroom spectators are not similarly situated to lawyers, judges, parties, and witnesses, who are actively involved in court proceedings and stand to lose significant rights if they cannot appear," Naeve wrote.

Naeve wrote that settled precedent from around the country uniformly rejects USA Today's argument that the public has a First Amendment right to electronically access court proceedings.

"The First Amendment right to courtroom access ensures that there will be no secret trials -- it does not ensure that a multibillion-dollar corporation gets the most cost-effective method of covering a trial," Naeve wrote.

The California Supreme Court may be more philosophically aligned with Melcher. California Chief Justice Tani G. Cantil-Sakauye and the Judicial Council publicly endorsed expanding remote access to courts in California after submitting a report in August that found remote access to public hearings provided many benefits, including court transparency.

"Providing access to the courts through remote technology increases access to justice," Cantil-Sakauye said. "This issue is about equity and fairness because it can help those who may have to miss work or travel long distances to make brief courtroom appearances. It is about transparency because remote hearings make court hearings more accessible to the public and media. Of course, remote technology should not replace all in-person court hearings, but Californians should have the freedom of choice to conduct their business remotely whenever appropriate."

The Legislature has also made clear that it supports remote access. Assembly Bill 716 would require the court to provide, "a public audio stream or telephonic means by which to listen to the proceedings" when the courthouse is physically closed, except when proceedings are deemed confidential.

The state Supreme Court said it may not decide whether to grant review of USA's Petition until Dec. 30. USA TODAY v. Superior Court of Los Angeles County, B315096. (Cal., filed Oct. 1, 2021).