Legal Newsline

Thursday, September 19, 2019

Judge's ruling on reporter's side in note-taking debate

By John O'Brien | May 27, 2011


CHICAGO (Legal Newsline) - A federal judge wrote in 2006 that a ban on note-taking in an Illinois courtroom could only harm the public's need for accurate information.

U.S. District Judge Elaine Bucklo was critical of an Illinois judge's policy that kept a Loyola University law professor from taking notes in her courtroom. That professor, Jona Goldschmidt, sued former Cook County Judge Gloria Coco over the ban.

In February 2006, Bucklo denied Coco's motion to dismiss.

"Notes are taken to insure accuracy," Bucklo wrote. "The defendant's rule interdicts all who quietly take notes at a public trial, be they teachers, students, lawyers representing non-parties who may have similar interests, and courtroom monitors and evaluators of judicial performance representing public interest groups, or simply interested members of the public.

"A prohibition against note-taking is not supportive of the policy favoring informed public discussion; on the contrary, it may foster errors in public perception."

Goldschmidt said Coco's policy violated his First Amendment rights. Bucklo seemed to agree, but eventually his claims were deemed moot because Coco started allowing note-taking.

Goldschmidt had been sending his criminal justice students to the courtroom to observe domestic violence cases. When Goldschmidt personally showed up with his notepad, Coco stopped the defendant's opening statement to tell him he could not take notes.

When Goldschmidt asked why, Coco nodded to a bailiff who removed him from the courtroom.

"As she was defending the policy as a reasonable policy of courtroom etiquette, as soon as the motion to dismiss was denied, she filed an affidavit that said it wasn't her policy," Goldschmidt said.

Coco said courtroom staff put up a sign that banned note-taking. She later retired while Goldschmidt was appealing rulings and the entire case, which also alleged Goldschmidt was unlawfully detained by court staff who interrogated him, became moot.

Goldschmidt called the ruling that denied the motion to dismiss a "very good" one - "It does state that we had a cause of action under the First Amendment."

The issue arose again recently in Philadelphia, where a group of judges told reporter Jon Campisi of the recently opened Pennsylvania Record that he could not take notes in their courtrooms. The Pennsylvania Record and Legal Newsline are both owned by the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce.

After one judge said Campisi couldn't take notes during closing arguments of a trial and another forbade it entirely, Campisi says Supervising Judge William Manfredi also accused him of having an agenda. Judge Webster Keogh, the administrative judge of the civil trials division, told the Pennsylvania Record that note-taking isn't illegal but a judge has discretion to disallow it.

"It isn't unconstitutional to wear a hat in the courtroom, but a judge can make you take your hat off," Keogh said.

Bucklo's opinion in the Illinois case would not seem to back that up.

"Judge Coco's main argument is that her inherent power to maintain the order and decorum necessary to insure the proper administration of justice authorizes her to forbid an observer from taking notes while court is in session," Bucklo wrote. "Her rule presents a serious constitutional issue.

"A sweeping prohibition of all note-taking by any outside party seems unlikely to withstand a challenge under the First Amendment."

Bucklo wrote that her circuit has never addressed the issue but it had ruled that "cameras are qualitatively different from reporters' note-taking and sketching" in a case that upheld a ban on cameras in the courtroom.

The U.S. Supreme Court, which has famously stayed away from having oral arguments broadcast, has even overturned its ban on note-taking. None of the 13 circuit courts of appeal bar note-taking, either.

Since Goldschmidt's problem with Coco, he says he still sporadically receives similar complaints from around the city, but he says the sheriff's office has been cooperative in training deputies who work in courtrooms for the issue.

Campisi, meanwhile, says he has recently covered one trial in Philadelphia without incident, but has not spoken with any of the judges who banned note-taking.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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