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Can You Record Your Court Proceedings?

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By Ephrat Livni, Esq. on November 04, 2015 8:19 AM

Recently in Illinois, a man was ordered to remove Facebook posts encouraging people to record court proceedings. James Weddigan's social media activity earned him charges for contempt of court, which he successfully appealed, The Washington Post reported.

Weddigan won on procedural grounds, meaning that the Illinois high court never addressed free speech on social media or one's right to record court proceedings. Instead, it found that the lower court confused criminal and civil contempt. But the question remains. Can you record any court proceeding?

The Long and Short of It

The short answer to the question is probably not but possibly ... depending. You can record court proceedings in a state where doing so does not violate court rules. But most states do prohibit court recordings and few allow cell phone use in a courtroom, so you may be breaking the rules by bringing a recording device in at all.

In Illinois, there is a rule prohibiting court recordings, so Weddigan was ultimately advocating that people break the law. Interestingly, he was not so bold. Weddigan ultimately claimed that he never even recorded his own hearing.

He was merely making a statement to fellow citizens using Facebook that they should exercise their right to record. In other words, Weddigan did not admit to breaking the rule himself. He merely advocated that others should do so.

Unjustifiable Restriction on Speech

In a concurring opinion -- one that agrees with the majority conclusion but addresses the constitutional question -- appellate Judge Steigmann wrote that there was no justification for the order that Weddigan remove his Facebook posts. Addressing the restrictions on Weddigan's right to speak freely, the judge dismissed the gravity of Weddigan's posts, writing, "And exactly how pressing an issue in the first place was respondent's advocacy of violating this [recording] rule?"

The judge answers his own question, saying not very. Quoting a 1927 case, he wrote, "'[E]ven imminent danger cannot justify' restrictions on speech 'unless the evil apprehended is relatively serious.' Recording trial court proceedings in violation of an Illinois Supreme Court rule falls far short of that standard.'"

But note, the judge does not say that recording court proceedings in violation of rules is alright, just that posting about it on social media should not earn Weddigan contempt charges.

How to Handle It

If you wish to record a court proceeding, find out local rules. You can even just ask the judge for permission and see what happens.

You may be surprised to find how amenable authorities are to granting simple requests if they are asked respectfully. If, however, the judge denies you, it's probably best not to do what Widdegan did and make a big stink on social media.

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