Florida Court Proposal to Regulate Bloggers and Video Generates Widespread Criticism

A proposed new rule regulating the use of electronic devices in courtrooms has generated 177 comments, 172 of which expressed opposition to the new rule. Only two comments expressed approval of the proposed rule, while three comments pointed out editorial corrections. The Judicial Administration Rules Committee of The Florida Bar proposed the new rule, which would allow judges and quasi-judicial officers to remove electronic devices from jurors during trial and deliberations, to confiscate any electronic devices during proceedings, and order deletion of recordings or images on electronic devices. The proposed rule exempts professional journalists from its application, referring them to an existing rule instead. The entire text of the proposed rule can be found on the page for the Rules of Judicial Administration Committee on the website for The Florida Bar.

A coalition of journalist organizations, the Florida Press Association, the First Amendment Foundation, the Florida Association of Broadcasters and the Reporters Committee for Freedom of the Press, submitted a joint letter in opposition to the proposed rule. Their opposition focused on the proposed rule's incorporation of the definition of "professional journalist" from Florida's reporter's privilege law, because it limits "journalists" to salaried employees or independent contractors for traditional news establishments. The narrow definition would exclude freelance journalists, community association reporters, book authors, citizen bloggers, and journalists working for web-based news organizations and thus could have the effect of preventing coverage of court proceedings.

Media attorneys from Holland & Knight also submitted comments in opposition, pointing out many constitutional infirmities in the proposed rule that could cause confusion as to which rules apply to journalists. Compounding that confusion is the fact that the proposed rule exempts journalists, referring them instead to another rule that regulates only television cameras, still cameras and radio broadcasting equipment. Thus, it actually refers journalists to a rule inapplicable to most electronic devices. The Holland & Knight attorneys also noted that allowing judges to confiscate devices and order deletion of files does not provide due process protections prior to confiscation and endorses the use of prior restraints to control information leaving the courtroom under a lesser standard than that required by law.

Among others opposing the proposed rule were the Criminal Law Section of The Florida Bar, The Florida Bar's Rules of Civil Procedure Committee, the Broward County Bar Association Bench Bar Committee, the nonprofit Citizens for Sunshine, Inc., other Florida attorneys and 164 individuals who object to the prohibition of the use of electronic devices by "citizen journalists."

The comments have been referred back to a subcommittee of The Florida Bar, which will consider the public input, potentially make changes based on that input and then submit a final revised proposal to the full Rules of Judicial Administration Committee.