Introduction

COVID-19 has led to court proceedings being done online rather than in person. Many court proceedings are now being livestreamed to the public through mediums such as YouTube and Facebook Live. For the circuit court of the Twenty-Judicial Circuit of the State of Illinois, some judges are allowing livestreaming through YouTube, while others are concerned that livestreaming might detract from courtroom decorum and proper security of their court. In a recent press release regarding livestreaming from the circuit court, the court declared:
 
In addition to video appearance, members of the public may be able to view court proceedings that will be live streamed to the internet to ensure public access to proceedings. Cases which are closed to the public will not be live streamed, and judges do have the judicial discretion to not live stream a proceeding.

Press Release, Illinois Supreme Court Modifies Order to Allow Circuit Courts to Resume, 22nd Judicial Circuit, McHenry County, Illinois (May 21, 2020) (https://www.mchenrycountyil.gov/home/showdocument?id=98427) [hereinafter Press Release].

This press release seems to indicate that whether a judge’s court cases are livestreamed will be left to the judge’s discretion. However, under the Public Access heading of the court’s Reestablishment Plan, the court has also stated:

If the public’s ability to physically access to the courthouse is restricted to emergency or essential matters only, then the public will not be allowed to enter the courthouse for the purpose of viewing proceedings. If proceedings are conducted during this time period in a Virtual Courtroom, the proceedings must be livestreamed to ensure public access to the proceeding.

Reestablishment Plan, 22nd Judicial Circuit, McHenry County, Illinois, Continuity of Operations (https://www.mchenrycountyil.gov/home/showdocument?id=98429) [hereinafter Plan].

This quotation from the Reestablishment Plan suggests that judges are not given a choice as to whether their court proceedings are to be livestreamed. Yet the Plan also gives some deference to judges under the Conduct & Decorum heading, stating, “The Judge shall make every effort to maintain the same level of decorum as if participants were physically present in the courtroom.” Id. Further, in the Public Access heading in the Reestablishment Plan, the court states, “In order to reduce the number of people coming into the courthouse at any one time, the Judge shall consider live streaming all virtual proceedings regardless of who is physically present in the courtroom at the time of the hearing.” Id.

The court has further set out limitations for what the public can do regarding the livestreams: “Video or audio recording, of any live-streamed proceeding, by any party, attorney, or any member of the public, through any device or format is strictly prohibited. Failure to comply with this admonishment may result in the imposition of sanctions or in a finding of contempt.” See Press Release. In order to ensure this happens, the court deletes YouTube content immediately after it airs and puts a watermark on the livestream feed reading “COPYING IS PROHIBITED,” “DO NOT COPY,” or other words to that effect. See Plan.

Legal Analysis

Right for Public to Have Courtroom Access

Having courtroom access is derived from two sources. The first source is the common law presumption giving the public a right of access to court proceedings. Nixon v. Warner Communications, 435 U.S. 589, 599 (1978). Courts that have ruled on this have agreed that the decision on whether to access is best left to the discretion of the trial court, which should make its decision in light of the relevant facts and circumstances of the particular case. Id.

The second source is the First Amendment right to freedom of speech, which carries with it some freedom to listen and the right of access to places traditionally open to the public, as criminal trials have long been. Richmond Newspapers v. Virginia, 448 U.S. 555, 576 (1980). The public has access not only to criminal cases, but civil cases also. This can be supported by the common law, with evidence such as the 1677 Concessions and Agreements of West New Jersey, which provided, “That in all publick courts of justice for tryals of causes, civil or criminal, any person or persons, inhabitants of the said Province may freely come into, and attend the said courts, and hear and be present, at all or any such tryals as shall be there had or passed, that justice may not be done in a corner nor in any covert manner.” Id. at 567. In addition, there are policy reasons that support the public being allowed access to court proceedings in civil cases: education of the public on legal proceedings and ensuring accurate fact-finding and court decisions. Id. at 572, 595-96.

There are limitations on how much access the public can have to courtrooms. The Supreme Court has declared, “[T]he right to inspect and copy judicial records is not absolute . . . Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes.” Warner Communications, 435 U.S. at 598. There can be instances in which the right of access is superseded by a defendant’s constitutional right to a fair trial but this can only be “on the basis of articulable facts known to the court, not on the basis of unsupported hypothesis or conjecture.” U.S. v. Edwards, 672 F.2d 1289, 1294 (7th Cir. 1982). However, there can be times where there is “such a probability that prejudice will result that [the procedure used by the court (in this case, televising a well-known case)] is deemed inherently lacking in due process.” Estes v. Texas, 381 U.S. 532, 542-43 (1965). It is also important to note that within the courthouse, a reporter’s constitutional rights are no greater than those of any other member of the public. Id. at 589. Thus, members of the media and members of the public are treated the same by the court.

Courts’ Obligation to Livestream

Although the public has a right to access court proceedings to some degree, it is a different matter to prove that courts must be obligated to provide a livestream when courts are not open to the general public. The Supreme Court has concluded that “expression by means of motion pictures is included within the free speech and free press guarantee of the First [Amendment].” Joseph Burstyn v. Wilson, 343 U.S. 495, 502 (1952). From this, it can be concluded that livestreaming is protected free speech, but that does not necessarily mean that courts are to be required to conduct it themselves in order to uphold the public’s right of access. In Warner Communications, the most important case regarding court access, the court determined there to be a “presumption in favor of public access,” but failed to clarify the strength of this presumption, leaving it up to the courts of appeal to decide for themselves. Edwards, 672 F.2d at 1293; see also Warner Communications, 435 U.S. at 599. In Warner Communications, the court also declared, “[T]he decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” Warner Communications, 435 U.S. at 599. Therefore, courts are given significant leeway in how they wish to allow public access to courtrooms.

Livestreaming in Illinois Courts

The Supreme Court of Illinois affirmed that “the court has supervisory authority over its own records and files and may deny access at its discretion.” People v. Zimmerman, 120 N.E.3d 918, 921 (Ill. 2018). In Illinois, there is a common law right for public access to court records, which states:

“Such other books of record and entry as are provided by law, or may be required in the proper performance of their duties. All records, dockets and books required by law to be kept by such clerks shall be deemed public records, and shall at all times be open to inspection without fee or reward, and all persons shall have free access for inspection and examination to such records, docket and books, and also to all papers on file in the different clerks' offices and shall have the right to take memoranda and abstracts thereto.”

705 ILCS 105/16(6).

This statute “does not, however, abrogate the trial court’s inherent power to control its files and to impound any part of a file in a particular case.” In re Marriage of Johnson 598 N.E.2d 406, 409 (Ill. App. Ct. 1992); see also Deere & Co. v. Finley, 431 N.E.2d 1201, 1203 (Ill. App. Ct. 1981). The Supreme Court of Illinois has also “deemed public access to court records ‘essential to the proper functioning of a democracy’ because ‘citizens rely on information about our judicial system in order to form an educated and knowledgeable opinion of its functioning.’” United Conveyor Corp. v. Allstate Ins. Co., 92 N.E.3d 561, 566 (Ill. App. Ct. 2017); see also Coy v. Wash. Cty. Hosp. Dist., 866 N.E.2d 651, 653 (Ill. App. Ct. 2007). There is a presumption that the public has access to court records under the First Amendment, which gives the public the right to inspect court records which have “historically been open to the public” and disclosure of which would further the court proceeding at issue. Skolnick v. Altheimer & Gray, 730 N.E.2d 4, 16 (Ill. 2000); see also United States v. Corbitt, 879 F.2d 224, 228 (7th Cir. 1989). “To overcome presumption, the party opposing public access bears the burden of establishing: (1) a compelling interest that favors a closed file, and (2) that the protective order is drafted in the least restrictive manner possible.” Skolnick 730 N.E.2d at 16. Livestreaming is a very recent development, so it cannot be argued that it falls within the category of being “historically open to the public.” It is important to note that most courts prohibit the recording of court proceedings and having all court proceedings livestreamed would make this rule very difficult to enforce. The public have historically had access to in-person, live court proceedings, and documents upon request, but not to video footage of proceedings, which is what could potentially be available if livestreaming were obligated for all courts.

Courtroom Decorum

Another important consideration is how livestreaming might affect courtroom decorum. “It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country.” Illinois v. Allen, 397 U.S. 337, 343 (1970). In Illinois v. Allen and Deck v. Missouri, the Supreme Court considered the constitutionality of shackling a defendant in court in a criminal trial. “The concern for courtroom decorum is not a concern about defendants, let alone their right to due process. It is a concern about society's need for courts to operate effectively.” Deck v. Missouri,544 U.S. 622, 656 (2005). These cases are more than about shackling; they are about how courts should and may control decorum. In Deck, the Supreme Court overruled the trial court, which had rejected the defendant’s objection to the appearance of the defendant in court with shackles on. Appearing in court like this had a possibility of influencing the jury. Id. at 658. However, the Court did recognize the possibility for judges to take account of special circumstances, including security concerns, which could call for shackling defendants. Id.

These cases show that the Supreme Court recognizes a right for courts to exercise discretion regarding matters of decorum. This is a right which extends back many years: “[C]ourts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect and decorum in their presence, and submission to their lawful mandates.” Ex parte Terry, 128 U.S. 289, 303 (1888). The court of appeals also recognizes this: “Such matters of courtroom decorum rest in the sound discretion of the trial court.” U.S. v. Roustio, 455 F.2d 366, 371 (7th Cir. 1972). In addition, Illinois courts recognize this deference to judges: “It would be utterly impossible for the law of the land to be properly administered if judges do not have the power to prevent instances of indecorum from occurring in their own presence.” People v. Bell, 658 N.E.2d 1372, 1379 (Ill. App. Ct. 1995).

Advocates of livestreaming court cases will argue that livestreaming has no detrimental effect on matters of justice:

During the last thirty years, studies conducted by state and federal jurisdictions to evaluate the effect on the judicial process of the presence of cameras in courtrooms have demonstrated that televised coverage of trial court proceedings does not impede the fair administration of justice, does not compromise the dignity of the court, and does not impair the orderly conduct of proceedings . . . The results of studies of these experiments, conducted between 1979 and 1994, establish that a silent, unobtrusive in-court camera can increase public access to the courtroom without interfering with the fair administration of justice.

Katzman v. Victoria’s Secret Catalogue, 923 F. Supp. 580, 586 (S.D.N.Y. 1996)

It is important to note that livestreaming court cases has never been done to the extent that it has been done since COVID-19 began, so updated studies should be more readily available. In addition, it is better to allow judges to decide on whether to livestream their cases, since case law favors giving them discretion in court decorum.

Conclusion

With a nationwide pandemic, courts must make adjustments in order to continue carrying out justice. It is undeniable that video must be used for lawyers, witnesses, defendants, and plaintiffs to be required to appear before judges in court. However, judges should not be obligated to livestream. In Warner Communications, the Supreme Court emphasized the importance of courts deciding for themselves how best to exercise proceedings. Warner Communications, 435 U.S. at 599. Judges should consider facts and circumstances themselves to determine whether livestreaming should be allowed. A valid concern of judges is that a member of the public can record court proceedings (which is not allowed by many courts) and use recordings as a political weapon, which can be worrisome for a judge who is elected. Estes v. Texas, 381 U.S. at 548. We are in the early stages of livestreaming court cases, and it is best to proceed cautiously and allow discretion rather than to mandate certain methods of proceedings of the judges. It is important to be aware of the risk of livestreaming being used by unknown parties as a “vehicle of improper purposes.” Warner Communications, 435 U.S. at 598.

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Kellen Dykstra worked as a 2020 summer extern for Circuit Judge Michael Chmiel of the Twenty-Second Judicial Circuit of the State of Illinois. Kellen is now in his second year of law school at the University of Illinois College of Law, with interest in probate, business, real estate, and contracts. Kellen grew up in Hudsonville, Michigan, and attended Grand Valley State University, where he majored in history and geography.