                                                                              FILED
                                                                         Oct 31 2017, 12:37 pm

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Margaret M Christensen                                     Curtis T. Hill, Jr.
Bingham Greenebaum Doll, LLP                               Attorney General of Indiana
Indianapolis, Indiana                                      Stephen R. Creason
                                                           Aaron T. Craft
                                                           Deputy Attorneys General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

WPTA-TV,                                                   October 31, 2017
Appellant-Intervenor,                                      Court of Appeals Case No.
                                                           35A02-1705-CR-1060
        v.                                                 Appeal from the Huntington
                                                           Circuit Court
State of Indiana,                                          The Honorable Thomas M. Hakes,
Appellee-Plaintiff,                                        Judge
                                                           Trial Court Cause No. 35C01-
And                                                        1605-F3-96

John C. Mathew,

Appellee-Defendant.




Riley, Judge.




Court of Appeals of Indiana | Opinion 35A02-1705-CR-1060 | October 31, 2017                       Page 1 of 13
                                 STATEMENT OF THE CASE
[1]   Appellant-Intervenor, WPTA-TV, appeals the trial court’s grant of its request

      for a digitally recorded version of a publicly available court record while

      limiting WPTA-TV’s use of the audio record and barring its broadcast or

      dissemination.


[2]   We affirm.


                                                    ISSUES
[3]   WPTA-TV presents us with three issues on appeal, which we consolidate and

      restate as the following two issues:


          (1) Whether the trial court abused its discretion when it applied Indiana

              Judicial Rule 2.17 to limit the use of an audio recording of a sentencing

              hearing by a news media organization; and

          (2) Whether the trial court’s prohibition to broadcast the audio recording of

              a judicial proceeding violates the First Amendment to the United States

              Constitution.


                       FACTS AND PROCEDURAL HISTORY
[4]   On May 27, 2016, the State filed an Information, charging John C. Mathew

      (Mathew) with rape, as a Level 3 felony; sexual battery, as a Level 6 felony; and

      two Counts of battery, as Class B Misdemeanors. The State subsequently

      amended the rape charge to a charge for sexual battery, as a Level 6 felony.

      After Mathew pled guilty to both sexual battery Counts, the State dismissed the

      Court of Appeals of Indiana | Opinion 35A02-1705-CR-1060 | October 31, 2017   Page 2 of 13
      misdemeanor charges. On April 17, 2017, the trial court conducted a

      sentencing hearing during which the trial court imposed a two-year sentence on

      each Count. The trial court ordered the sentences to run consecutive to each

      other and suspended the entire sentence to probation with Mathew serving two

      years on “electronic monitoring/home detention” as a condition of probation.

      (Appellant’s App. Vol. II, p. 5). Mathew was required to register as a sex

      offender.


[5]   On April 18, 2017, WPTA-TV submitted an access to public records request to

      receive the “audio recording of sentencing hearing[;] documents (electronic or

      otherwise) submitted as evidence[; and] private letters submitted on behalf of

      victim and defendant[.]” (Appellant’s App. Vol. II, p. 11). On April 20, 2017,

      the trial court issued its Order Limiting the Use of Court Record and Barring Its

      Broadcast or Dissemination, concluding in, pertinent part, as follows:


              2. The [c]ourt is required to provide the record as requested.


              3. The requesting person may not broadcast the record, subject
              to the contempt power of this [c]ourt.


              4. The requesting person may not alter, add, delete or replace
              any part of the record provided.


      (Appellant’s App. Vol. II, p. 7).


[6]   On May 2, 2017, WPTA-TV filed its verified motion to intervene and

      reconsider the trial court’s order of April 20, 2017, claiming that the order


      Court of Appeals of Indiana | Opinion 35A02-1705-CR-1060 | October 31, 2017   Page 3 of 13
violated the provisions of Indiana Administrative Rule 9(G). Two days later,

on May 4, 2017, the trial court granted WPTA-TV leave to intervene and

indicated that it would rule on its request for reconsideration under Indiana

Trial Rule 60(D). On May 17, 2017, the trial court issued its Order, denying

WPTA-TV’s motion to reconsider, and finding, in pertinent part, that:


        [WPTA-TV] received as per their request the documents and CD
        on April [20], 2017. This was in proper compliance with
        Administrative Rule 9(D). The providing of the requested items
        gave [WPTA-TV] the ability to inspect and copy a court record
        which is the definition of Public Access as found in
        Administrative Rule 9(C)(6).


        The [c]ourt then, as required by Administrative Rule 9(D)(4)
        issued the order limiting the use of the record. [WPTA-TV’s]
        entire argument in its Motion to Reconsider revolves around
        Administrative Rule 9(G) and [WPTA-TV’s] argument that the
        [c]ourt in prohibiting the use and dissemination of the Record
        violates the provisions of Rule 9(G).


        The [c]ourt followed Administrative Rule 9(D)(4) and examined
        Judicial Conduct Rule 2.17 which states in part: “Except with
        prior approval of the Indiana Supreme Court, a Judge shall
        prohibit the broadcasting, televising, recording or taking photos
        in the courtroom . . .” The limit placed upon [WPTA-TV] is in
        compliance with this rule. Broadcasting all or parts of a court
        record is no different than [WPTA-TV] making their own
        recording and then broadcasting it . . . an act that is not allowed
        by the Rule.


        Copies of all documents requested were promptly provided but
        limited in use by the [c]ourt following the dictates of
        Administrative Rule 9(D)(4).

Court of Appeals of Indiana | Opinion 35A02-1705-CR-1060 | October 31, 2017   Page 4 of 13
      (Appellant’s App. Vol. II, p. 8).


[7]   WPTA-TV now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                              I. Judicial Rule 2.17


[8]   Focusing on the interplay between Administrative Rule 9(D)(4) and Judicial

      Rule 2.17, WPTA-TV contends that the trial court’s interpretation to allow

      access but, at the same time, prohibit the use or dissemination of the recording,

      renders that same access to the record meaningless. As Judicial “Rule 2.17 is

      concerned with contemporaneous recordings in courtrooms, not ex post facto

      dissemination of previously-recorded testimony[,]” WPTA-TV maintains that

      the Rule cannot serve as a proper basis for denying its motion to reconsider and

      upholding the trial court’s order limiting the use and dissemination of the

      courtroom’s record. (Appellant’s Br. p. 22).


[9]   “Pursuant to the inherent authority of the Indiana Supreme Court and pursuant

      to Indiana Code section 5-14-3-4(a)(8),” Administrative Rule 9 governs the

      public access to, and confidentiality of, court records. Starting from the

      presumption of open public access to court records, the administrative Rule’s

      objective is “to provide maximum public accessibility to [c]ourt [r]ecords,”

      while “taking into account public policy interests that are not always fully

      compatible with unrestricted access.” (Admin.R.9(A) cmt). In accordance

      with these purposes, Administrative Rule 9(D) regulates the general access to

      court records, and provides that:
      Court of Appeals of Indiana | Opinion 35A02-1705-CR-1060 | October 31, 2017   Page 5 of 13
               (1) A [c]ourt [r]ecord is accessible to the public except as
                   provided in section 9(G).


               (2) The rule applies to all [c]ourt [r]ecordings, regardless of the
                   manner of creation, method of collection, form of storage, or
                   the form in which the record is maintained.


               (3) If a [c]ourt [r]ecord, or portion thereof, is excluded from
                   public access, there shall be a publicly accessible indication of
                   the fact of exclusion but not the content of the exclusions.
                   This sub-section (3) does not apply to court proceedings, or
                   [c]ourt [a]dministrative [r]ecords which are confidential
                   pursuant to law.


               (4) A [c]ourt may manage access to audio and video recordings
                   of its proceedings to the extent appropriate to avoid
                   substantial interference with the resources or normal
                   operation of the court and to comply with Indiana Judicial
                   Conduct Rule 2.17. This provision does not operate to deny
                   to any person the right to access a [c]ourt [r]ecord under Rule
                   9(D)(1).


[10]   Accordingly, establishing the parameters of WPTA-TV’s access and use of the

       audio recording of the sentencing hearing, the trial court turned to Judicial Rule

       2.17 for further guidance. Judicial Rule 2.17, which regulates the broadcasting

       of proceedings, states:


               Except with prior approval of the Indiana Supreme Court, a
               judge shall prohibit broadcasting, televising, recording, or taking
               photographs in the courtroom and areas immediately adjacent
               thereto during session of court or recesses between sessions,
               except that a judge may authorize:


       Court of Appeals of Indiana | Opinion 35A02-1705-CR-1060 | October 31, 2017   Page 6 of 13
        (1) The use of electronic or photographic means for the
            presentation of evidence, for the perpetuation of a record, or
            for other purposes of judicial administration;


        (2) The broadcasting, televising, recording, or photographing of
            investitive, ceremonial, or naturalization proceedings;


        (3) Graphic or electronic recording and reproduction of
            appropriate court proceedings under the following conditions:


                 a. The means of recording will not distract participants or
                    impair the dignity of the proceedings;


                 b. The parties have consented, and the consent to being
                    depicted or recorded has been obtained from each
                    witness appearing in the recording and reproduction;


                 c. The reproduction will not be exhibited until after the
                    proceeding has been concluded and all direct appeals
                    have been exhausted; and


                 d. The reproduction will be exhibited only for
                    instructional purposes in educational institutions.


Under Indiana Administrate Rule 9(D), the requested audio recording of the

sentencing hearing was a public court record which should be made available—

and was—to WPTA-TV. In accordance with Administrative Rule 9(D)(4), the

trial court managed the access to its audio recording in compliance with

Indiana Judicial Rule 2.17. Implicitly concluding that WPTA-TV’s request fell

outside the three exceptions listed in the Rule, the trial court granted a copy of


Court of Appeals of Indiana | Opinion 35A02-1705-CR-1060 | October 31, 2017   Page 7 of 13
       the recording to WPTA-TV, but prohibited its broadcast as mandated by the

       Rule’s preamble. 1


[11]   WPTA-TV now attempts to circumvent the application of Judicial Rule 2.17 by

       contending that the Rule is only applicable to the contemporaneous recording

       of the proceedings and not to the ex post facto broadcasts of a hearing. We find

       WPTA-TV’s interpretation of Judicial Rule 2.17 too narrow. Witnesses and

       other actors in the current courtroom hearings proceed with the understanding

       that although their words are recorded, these recordings are used solely within

       the judicial realm, thereby protecting the effectiveness, reliability, and fairness

       of the judicial system. Permitting the audio of a proceeding to be broadcast to

       the public in general by way of any type of media, would have an intimidating

       impact, not only on the behavior of the witnesses and other actors—causing

       possible fear and reluctance to testify—but also on the openness and candidness

       of any trial testimony. We perceive no difference between the effect of

       broadcasting a hearing ex post facto versus the contemporaneous dissemination

       of the proceeding. As we believe that “the atmosphere essential to the

       preservation of a fair trial—the most fundamental of all freedoms—must be

       maintained at all costs,” we affirm the trial court’s decision, prohibiting the




       1
         A review of the very limited case law involving the application of Judicial Rule 2.17 indicates it has become
       standard practice for trial courts to require the party requesting an audio recording of a court proceeding to
       sign an “Acknowledgment,” agreeing not to broadcast the recording in any media whatsoever. See Clements
       v. Altice, 48 N.E.3d 389 (Ind. Ct. App. 2016) (unpublished memorandum opinion); Clements v. Hanley, 20
       N.E.3d 924 (Ind. Ct. App. 2014) (unpublished memorandum opinion).

       Court of Appeals of Indiana | Opinion 35A02-1705-CR-1060 | October 31, 2017                       Page 8 of 13
       “[b]roadcasting [of] all or parts of a court record.” Estes v. Texas, 381 U.S. 532,

       540, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); (Appellant’s App. Vol. II, p. 8).


                           II. First Amendment of the United States Constitution


[12]   Next, WPTA-TV contends that the trial court’s Order violates the First

       Amendment to the United States Constitution as it constitutes a “gag order”

       intended to muzzle the media and thus amounts to an impermissible prior

       restraint on free speech. (Appellant’s Br. p. 13).


[13]   The First Amendment, made applicable to the States through the Fourteenth

       Amendment, provides that “Congress shall make no law . . . abridging the

       freedom of speech . . .” U.S. Const., Amend. I. A prior restraint is a term used

       to describe “administrative and judicial orders forbidding certain

       communications when issued in advance of the time that such communications

       are about to occur.” Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct.

       2766, 2771, 125 L.Ed.2d 441 (1993). The special vice of a prior restraint is that

       “communication will be suppressed, either directly or by inducing excessive

       caution in the speaker, before an adequate determination that it is unprotected

       by the First Amendment.” Pittsburgh Press Co. v. Pittsburgh Commission on Human

       Relations, 413 U.S. 376, 93 S.Ct. 2553, 2561, 37 L.Ed.2d 669 (1973). The

       common thread running through free speech cases is that prior restraints on

       speech and publication are the most serious and the least tolerable infringement

       on free speech rights. Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct.

       2791, 2803, 49 L.Ed.2d 683 (1976). However, the protections the First


       Court of Appeals of Indiana | Opinion 35A02-1705-CR-1060 | October 31, 2017   Page 9 of 13
       Amendment affords against prior restraints are not triggered unless there is state

       action. Alexander, 509 U.S. at 550. Although a prior restraint is not per se

       unconstitutional, it comes to an appellate court with a heavy presumption

       against its constitutional validity. Mishler v. MAC Systems, 771 N.E.2d 92, 95

       (Ind. Ct. App. 2002).


[14]   Despite WPTA-TV’s attempt to define the trial court’s Order as a gag order, we

       are not persuaded. The trial court’s Order does not prohibit WPTA-TV from

       reporting on Mathew’s sentencing hearing and using the transcript of the

       hearing in its publication or broadcast; rather the trial court only prohibited the

       dissemination of the audio recording of the hearing to the public at large while

       leaving all other forms of communication available. Accordingly, the issue here

       is not a complete ban on a publication by the press; rather WPTA-TV’s

       constitutional claim turns on the breadth of the First Amendment’s “implicit

       guarantee against undue interference with the acquisition of knowledge.”

       LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-22, at 976 (2d

       ed. 1988). “The First Amendment is concerned with fostering ‘indispensable

       conditions of meaningful communication,’ but this protection must be applied

       with ‘discrimination and temperance’ and in consideration of possible

       encroachment on other important interests.” In re WTHR-TV, 693 N.E.2d 1, 15

       (Ind. 1998) (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 587-88,

       100 S.Ct. 2814, 2833-34, 65 L.Ed.2d 973 (1980) (Brennan, J., concurring)).




       Court of Appeals of Indiana | Opinion 35A02-1705-CR-1060 | October 31, 2017   Page 10 of 13
               Freedom of the press, hard-won over the centuries by men of
               courage, is basic to a free society. But basic too are courts of
               justice, armed with the power to discover truth.


       Garland v. Torre, 259 F.2d 545, 548 (2d Cir. 1958). Both criminal defendants

       and society in general have a major stake in accurate, informed, and fair

       adjudication of criminal proceedings. In re WTHR-TV, 693 N.E.2d at 15.


[15]   As such “the government may impose reasonable restrictions on the time,

       place, or manner of protected speech, provided the restrictions are justified

       without reference to the content of the regulated speech.” State v. Economic

       Freedom Fund, 959 N.E.2d 794, 801-02 (Ind. 2011). The principal inquiry in

       determining whether a rule is content-neutral or content-based is the state’s

       purpose for enacting it. Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct.

       2746, 105 L.Ed. 661 (1989). “A regulation that serves purposes unrelated to the

       content of expression are deemed neutral, even if it has an incidental effect on

       some speakers or messages but not others.” Id. In essence, “[g]overnment

       regulation of expressive activity is content neutral so long as it is justified

       without reference to the content of the regulated speech.” Id. Here, we find

       Judicial Rule 2.17 to be content neutral as it applies to all audio recordings of

       hearings and proceedings regardless of their content or the message conveyed.


[16]   Nevertheless, content-neutral speech regulations can burden important First

       Amendment interests because, by restricting speech, they limit the marketplace

       of ideas and quell public debate. See, e.g., City of Ladue v. Gilleo, 512 U.S. 43, 55,

       114 S.Ct. 2038, 129 L.Ed.2d 36 (1994). To balance these competing interests,

       Court of Appeals of Indiana | Opinion 35A02-1705-CR-1060 | October 31, 2017   Page 11 of 13
the United States Supreme Court has held that content-neutral laws are subject

to an intermediate level of scrutiny, which affords the government more leeway

in meeting its legitimate regulatory objectives. Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622, 662, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). A content-neutral

law will be upheld under intermediate scrutiny only if it is narrowly tailored to

serve a substantial governmental interest and leaves open adequate alternative

channels of communication. Id. “To be narrowly tailored, a statute need not

employ the least restrictive or least intrusive means of accomplishing the

governmental purpose.” Ward, 491 U.S. at 798. “Rather, the requirement of

narrowly tailoring is satisfied so long as the . . . . regulation promotes a

substantial governmental interest that would be achieved less effectively absent

the regulation.” Id. at 799. Judicial Rule 2.17 is aimed at the protection and

preservation of a fair trial by reducing the intimidating impact the broadcast of

an audio recording would produce on witnesses and other judicial actors. It is

narrowly-tailored to only apply to courtroom recordings, while it does not

restrict the exhibition of recordings where these governmental interests are not

implicated, such as ceremonial functions. By limiting the scope of Judicial Rule

2.17 to merely those instances where the governmental interest is strongest, the

state judiciary has narrowly tailored the Rule to advance its legitimate interest

without overly burdening free expression while, at the same time, providing

ample alternative channels of communication of the information contained in

the recordings by making the transcripts of the hearing available. Accordingly,

WPTA-TV fails on its claim that Judicial Rule 2.17 runs afoul of the First

Amendment.
Court of Appeals of Indiana | Opinion 35A02-1705-CR-1060 | October 31, 2017   Page 12 of 13
                                              CONCLUSION
[17]   Based on the foregoing, we hold that the trial court properly applied Indiana

       Judicial Rule 2.17 to limit the use by a news media organization of an audio

       recording of a sentencing hearing; and this prohibition does not violate the First

       Amendment to the United States Constitution.


[18]   Affirmed.


[19]   Robb, J. and Pyle, J. concur




       Court of Appeals of Indiana | Opinion 35A02-1705-CR-1060 | October 31, 2017   Page 13 of 13
