[A] new set of media rules from the Vermont Judiciary will restrict who can record in the state’s courtrooms, and who classifies as a member of the press.
The rules, set to take effect next month, state that members of the media must be registered as employees of a “media entity,” and that media employees can record more content than members of the public.
Authorized press may record audio, video, or livestreams. Trial participants may record audio but not video. The public is not allowed to record or use devices at all in the courtroom.
The rules were formalized on May 1 and will go into effect on Sept. 3.
According to Emily Wetherell, deputy clerk of the Vermont Supreme Court, the rules are designed to update old policies — untouched since the 1980s — for the digital era. The original rules, for example, stipulated that media members were allowed one video camera and one still camera. Now that cellphones serve both functions, a policy based on individual devices is no longer relevant. Instead, Wetherell said, “it’s about how you’re using [the device] functionally.”
Wetherell added the registration for media members, too, is a response to the power that cellphones give citizens in the courtroom.
“That old rule was really just about media, because most people didn’t have the capability or the technology to record,” Wetherell said. “But now most people can … and so in order to identify who media is, the committee decided that a registration process would be the most useful way of doing it.”
Mike Donoghue, executive director of the Vermont Press Association and vice president of the New England First Amendment Coalition, has concerns about the new rules but he said understands the need to modernize the judiciary’s policies.
“Are the proposed rules perfect? Maybe not, but the Vermont Press Association salutes the court as they start to address the modernization of media technology,” he said.
The requirement for journalists to register with the courts to bring in devices is not unprecedented. In federal courts in Vermont, members of the media must be credentialed in order to bring in certain equipment. However, it could be a concern depending on how the Vermont judiciary determines who is legitimately a member of the media, Donoghue said.
“When somebody walks in with their iPhone and they claim to be a journalist, who is going to say yea or nay?” he said. “We’re just going to have to wait and see how it plays out.”
While Donoghue acknowledged the registration was a “debatable issue” for members of the association, he hailed a separate recent development with the state court system that establishes a permanent media committee with the judiciary. The panel will give journalists and the courts opportunity to discuss issues that are of concern, and to improve training on how both the media and the judiciary operate, he said.
According to Donoghue, Vermont was the only New England state that did not already have a committee. The panel could help the courts and the media deal with new internal developments — like a new computer system that the courts will soon have in place — and to manage press access to high profile cases.
“With an open dialogue it’s going to be easier to understand what both sides are doing,” he said.
While the changes were made official in May, they have been the subject of discussion for years. In the beginning, the court formed a committee to come up with the new media system; once that system was proposed, it went through a comment period and a public hearing.
During the talks, several parties expressed concern about the restrictions placed on non-media members. In 2017 testimony, the Vermont American Civil Liberties Union policy director Chloé White said the changes “pose worrisome questions regarding constitutional rights.” The director argued that the upgrade was too restrictive — that by separating the media from the public, the state might violate the First Amendment.
Attorney and committee member James Dumont, who has also voiced apprehension over defining the media too narrowly, said the rule offers a fair compromise.
“My view is that the Supreme Court has reached just the right balance of many important competing interests,” Dumont wrote in an email. “In particular, the rule protects the right and the ability of the public to access, record and publish court proceedings by using a broad definition of ‘media,’ and allowing nontraditional media to register in order to qualify.”
While the rules’ advocates believe the upgrade is necessary, Wetherell added that the updates shouldn’t upend day-to-day proceedings.
“In a lot of ways, there won’t be that much of a change,” Wetherell said. “I think that it will be easier for court staff and court officers in the courtroom to be able to identify if people are using devices in a way that they shouldn’t be.”
Elizabeth Hewitt contributed to this story.
Correction: This story originally incorrectly stated that the standing committee of journalists was created as part of the new media rules. In fact, it was established separately from the rules.