A judge who was a finalist for a spot on the Arizona Supreme Court gave a group of journalism students a real-life lesson in prior restraint on March 3.
Judge Pamela Gates of Maricopa County Superior Court ordered the students to erase recordings they made during a sentencing proceeding, an order First Amendment lawyers say went over the line.
Attorney Dan Barr, who practices First Amendment law, said the judge’s order was prior restraint, which she cannot do.
“Whether or not she tells you ‘you can record’ or not, once you’ve recorded, she can’t tell you what to do with it,” Barr said.
Prior restraint occurs when the government suppresses material before it can be published, which the First Amendment greatly limits.
Since the recordings had already been made when the judge said that prior recording must be deleted, she was preventing the quotes and information from those recordings to be used for publication.
Student reporters from Arizona State University’s Walter Cronkite School of Journalism and Mass Communication were on a class assignment in Gates’ court covering the sentencing of Rebekah Mellon, who pleaded guilty to second-degree murder in the 2012 shooting death of her husband, Donald.
Halfway through the proceeding, court staff informed the judge that spectators were recording. Gates stopped the sentencing, consulted with the prosecuting and defense attorneys, and then addressed the spectators.
She said the students using recorders violated Supreme Court rules governing the use of cameras and recording devices in court, and she wanted the recording stopped and all recordings of the proceedings up to that point deleted.
Gates has been on the bench since 2009 and sits in a leadership role as associate criminal presiding judge.
She was also one of seven finalists for two spots on the Arizona Supreme Court in 2016 when the Legislature added two seats to the court.
David Bodney, a litigator focusing on media and constitutional law, was on the committee that drafted the rule. He said that the judge went well beyond her authority.
“There would need to be some kind of hearing, and express findings that would be hard to justify in support of that kind of penalty,” Bodney said.
Bodney also said that the rule is simply there to inform the court of who is recording.
“That’s it, and the mere fact that you were unaware of that rule ought not give the court license to order the destruction of materials obtained in open court,” Bodney said. “The purpose is to notify the judge that there is someone in the courtroom with a tape recorder, and that person’s name is X.”
In her September interview for the Supreme Court, Gates, who was speaking on the issue of the court’s duty to interpret privacy laws in the context of modern technology, indicated she has an appreciation for the privacy of a person’s digitally-stored information.
“I love the Fourth Amendment,” Gates said. “A reasonable expectation of privacy on our cell phones, which have so much information about us, is absolutely a privacy right, and a reasonable expectation of privacy that we have all come to accept and appreciate.”
However, Gates said during the sentencing that those who were recording would be met afterward to ensure that they had deleted the audio files.
After the court hearing several court staffers told several student reporters that if they waited around they could discuss sanctions with the judge, who would not be available for several hours.
Bodney said that no such sanctions had been given in the past, and that they would have to be adjudicated.
“The question would be what would be an appropriate sanction,” Bodney said. “It seems to me the compulsory deletion of material obtained in open court goes too far, and would be unconstitutional.”
Gates never met with students after the sentencing and she did not reply to inquiries later that day and the following week.
Two Cronkite associate faculty members, Maureen West and Christia Gibbons, said they contacted the court’s media relations department last year about the court’s digital recording policy after a student reporter was told to stop recording during a sentencing.
West and Gibbons said they were told that digital recording for note taking was allowed in court.
Karen Arra, media relations director for the Maricopa County Superior Court, said that requests had to be made for audio that was being used for broadcast.
“The rule specifies that you must notify the court prior to using a personal audio recorder. If using the audio for broadcast, you must submit a camera or audio request prior to the
proceeding,” Arra said.
None of the students’ recordings was made for the intention of broadcast.
Arra, and others contacted in her department, did not provide any explanation for what sanctions would be leveled against those who kept recordings, and did not comment on whether the incident was prior restraint.
Journalism students Joe Jacquez and Nathan Fish contributed to this article