Missouri Press Association
Serving Missouri Newspapers Since 1867
As many of you are likely aware, earlier this year a Missouri judge found a Hermann reporter in contempt for using a cell phone to take photos and a short video in the courtroom during a murder trial. The judge ordered her jailed for five days. That case is now headed to the Missouri Supreme Court.
It is an unfortunate situation. Yet it is one that we should all care about because of this: No Missouri judge has ever sentenced a reporter to jail time for doing their job. That is alarming, all the more so given that this journalist was reportedly the pool photographer.
People have constitutional rights to have access to court proceedings. That’s for the protection of the accused, the system and the public. And that constitutional right to know includes reporting on what happens in the Courts. That can and should include photography.
Of course, it is important to follow the judge’s orders on cameras in the courtroom. And there are Supreme Court rules that address this as well. But mistakes can happen in the heat of coverage. And while the courts can reasonably control the time, place and manner of newsgathering in their courtrooms, the First Amendment is undeniably implicated when reporters are jailed.
There are several reasons why, no matter what transpired in that courtroom, five days of jail time should not be a precedent Missouri wants in this state.
In this case, the court did admirable work addressing the need for media coverage of an important trial. The court’s Decorum Order generally forbade cell phones and cameras in the courtroom. But it also stated that one of the objectives was to allow “media coverage of the trial.” A separate media order from the court allowed still photography that did not draw undue attention.
The reporter also strived to do the right thing. She did consult with the media coordinator to obtain approval to be the pool photographer. She was able to bring in her cell phone, she told the judge, after courthouse personnel allowed her to take it in. Technologically, the difference between a cell phone and a modern camera is a vanishing point. A cell phone is arguably less intrusive, being smaller. The court’s media order did not limit photo-taking to traditional cameras.
The court also took issue with a short video that was reportedly taken. Review of the transcript in the case reveals that, like most people I imagine, the reporter did not have a clear understanding of how the phone works. I suspect it is not uncommon for an iPhone user to press a video button instead of the camera button, or hold the button down too long, etc. A casual Google search reveals many people searching for answers to these very problems.
The Court’s order and the available transcript with the appellate case do not reveal any evidence of actual disruption to the trial. In this context, the court’s contempt power is designed to control acts “in the presence of the court which tend to interfere with the trial of a pending case.” State ex rel. Pulitzer Publ’g Co. v. Coleman, 152 S.W.2d 640 (Mo. 1941). Missouri also requires disorderly or insolent behavior, or willful disobedience. There is scant evidence I see in the record that the reporter’s conduct was necessarily willful or disruptive.
The closest Missouri precedent for what happened here is likely when, back in 2019, a St. Louis Post-Dispatch reporter live-tweeted while listening to proceedings being held in a courtroom that the court had closed pursuant to Missouri law. In that case, while jail time and fines were authorized, Judge Nellie Ribaudo only ordered the reporter to write apologies and undergo training.
Here, the transcripts show that the Hermann reporter deleted the photos and the video. And she apologized.
The judge’s contempt power is, well, powerful. And that is why it should be used, well, judicially.
In a disciplinary case involving a judge who found a police chief in contempt for not obeying his order to release a man from jail, the Missouri Supreme Court praised the trial judge’s willingness to forgive the chief’s insubordination if the suspect were let out. In re Conard, 944 SW 2d 191 (Mo. 1997). After the police chief accepted the judge’s offer, “the matter should have ended there.”
