ILLINOIS STATE BAR ASSOCIATION JANUARY 2021 VOL 7 NO. 3 Law Related Education The newsletter of the Illinois State Bar Association’s Committee on Law Related Education

2020-2021: A Time of Terror 2020-2021: A Time of Terror and Great Challenges to the Legal Community and Beyond: Past, Present, and and Great Challenges to the Future Legal Community and Beyond: 1 Martin Luther King Jr. Day: A Different Perspective on Past, Present, and Future the ‘Legacy’ of MLK Jr. From BY SHARON EISEMAN Civil Rights Attorney Vernon Jordan 1 This January issue of the ISBA’s the lawyers representing their clients and Committee on Law Related Education for the judges overseeing that litigation must the Public (‘LRE’) explores how we have continue their respective roles in presenting Altered Criminal Court coped, even prevailed, in managing the the evidence and dispersing justice for Proceedings in an phases of our personal and work-related the parties. And on the personal side, Unprecedented Era: What Is lives, especially in the courtrooms where Continued on next page New, How it Is Working, & Practices We May Keep in the Post-Pandemic World Martin Luther King Jr. Day: 5 Livestreaming Court Cases A Different Perspective 6 ISBA Launches Rural Practice Fellowship Program as on the ‘Legacy’ of MLK Jr. Component of Rural Practice Institute From Civil Rights Attorney 9 Using Social Media Wisely Vernon Jordan 10

BY SHARON EISEMAN New and Not-So-New January Holidays 2021 and THE MLK JR. HOLIDAY: LUTHER KING JR. from Civil 11 • What it has meant through the Rights attorney VERNON decades, JORDAN, and, perhaps due • A DIFFERENT PERSPECTIVE to lessons learned from the on the ‘LEGACY’ of MARTIN Continued on next page

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2020-2021: A Time of Terror and Great Challenges to the Legal Community and Beyond: Past, Present, and Future Law Related Education CONTINUED FROM PAGE 1 Published at least four times per year. sometimes we need a break and for that, limited access to attorneys, most of whom To subscribe, visit www.isba.org or call we offer an intriguing list of potential new practice in the more heavily populated 217-525-1760. holidays to observe each day in January urban areas. You will enjoy reading about OFFICE which might make you smile, even chuckle. this innovative Rural Practice Initiative and ILLINOIS BAR CENTER Among our articles in this issue, you its Fellowship Program. 424 S. SECOND STREET SPRINGFIELD, IL 62701 will find some terrific guidance from a law And finally, because of the occurrence PHONES: 217-525-1760 OR 800-252-8908 clerk and a law student who present helpful of Martin Luther King, Jr. Day on January WWW.ISBA.ORG perspectives on: (1) how to stay out of 18 in this year of 2021, we republish in our EDITORS trouble while navigating social media—a January newsletter an informative piece Sharon L. Eiseman timely topic since so many of us are using from two years ago about MLK, Jr., the PUBLICATIONS MANAGER that means of communication more often history of his struggles and his rise in the Sara Anderson now that we spend most of our daily lives public eye, and the battles he waged for  [email protected] on-line and on smartphones, through texts racial justice and equality. You will learn LAW RELATED EDUCATION and Facebook and Twitter, etc.; and (2) the or be reminded as to why it is so important COMMITTEE COUNCIL specifics for lawyers re: how to present a to remember and honor him, and to do so Christine G. Zeman, Chair Sandra L. Sweeney, Vice-Chair case remotely to the court. We also share in this particular moment as we celebrate Robert O. Ackley, Secretary Stephen D. Iden, Ex-Officio with you, in a persuasive report, a new ISBA both the man and the powerful messages Hon. Michael J. Chmiel Billie J. Constant project to help bring much-needed legal he fought so hard to communicate and Sharon L. Eiseman n Hon. Rex L. Gradeless, II representation to people living in the rural implement. Hon. Justin M. Hansen areas of the State which historically has David M. House Joseph Lyons P. Lyons Raquel G. Martinez Mary Ann Midden Hon. John J. O’Gara, Jr. Melissa M. Olivero Martin Luther King Jr. Day: A Different Perspective on the ‘Legacy’ of Hon. Edward J. Schoenbaum Sarah J. Taylor MLK Jr. From Civil Rights Attorney Vernon Jordan Amanda G. Highlander, Board Liaison Kimberly A. Furr, Staff Liaison CONTINUED FROM PAGE 1 Kelsey K. Chetosky, Associate Member Nancy G. Easum, Associate Member Hon. Pablo A. Eves, Associate Member Kathleen A. Karayannis, Associate Member Marylou L. Kent, Associate Member PANDEMIC, and (by North Carolina Senator Jesse Helms). To Kateah M. McMasters, Associate Member • AN ENHANCED APPRECIATION express his resistance that year, Helms led a Stanley N. Wasser, Associate Member of the need for RACIAL EQUALITY sixteen-day filibuster of the MLK Holiday to become THE ‘NORM’* bill but then finally voted for it in exchange for Congress’ approval of his tobacco bill. When Was the MLK, Jr. Holiday Despite this opposition, the bipartisan vote Established and Why? in favor of the bill handily won the day, First, before turning to a discussion of possibly because many Republicans may have Dr. King’s legacy and what it means, let’s believed they needed to show the public their review how a holiday in his memory was support for civil rights. established. Are you surprised to learn that And did you know or do you recall that DISCLAIMER: This newsletter is for subscribers’ personal use only; redistribution is prohibited. Copyright Illinois serious controversy arose in 1983 when Dr. King died before he even reached the State Bar Association. Statements or expressions of Congress moved to create a national holiday opinion appearing herein are those of the authors and age of forty, having been assassinated in not necessarily those of the Association or Editors, and to honor Dr. Martin Luther King, Jr. and likewise the publication of any advertisement is not to be Memphis, Tennessee on April 4 of 1968 when construed as an endorsement of the product or service commemorate his legacy? It did, from he was in the midst of preparing to lead a offered unless it is specifically stated in the ad that there is southern legislators as well as from President such approval or endorsement. protest in support of the City’s striking Articles are prepared as an educational service to members who opposed any national sanitation workers? Yet in his short lifetime, of ISBA. They should not be relied upon as a substitute for observance for Dr. King who was variously individual legal research. Dr. Martin Luther King accomplished the The articles in this newsletter are not intended to be used described as “an outside agitator” (by unimaginable, especially for a black man and may not be relied on for penalty avoidance. Senator Strom Thurmond in 1968 following from the South and one advocating for King’s assassination), and as someone who peaceful integration. Thus, this year as in “welcomed collaboration with Communists”

2 every previous year the holiday has been financial challenges but it also, perhaps champion of peace” who had distinguished observed, people all over our country—and unwittingly, simply stoked the flames of himself by showing that “a struggle can beyond—will pay homage to this great man, a significant and growing national civil be waged without violence”. Mr. Jahn also preacher, and acknowledged leader of the rights movement. That movement, which praised Dr. King for never abandoning his in America that has engendered many other battles for racial faith despite his having been subjected to defined for generations what our country equality, was borne of one black woman’s numerous imprisonments and bomb threats, must acknowledge and address in order to using her voice to demand equal access to as well as repeated death threats against eliminate in our society. public services. Ms. Parks later explained him and his family. Although detractors that she claimed her seat that fateful day, not continued to attack Dr. King’s teachings, Dr. King’s Early and Relevant because she was physically tired but because much progress had been made toward the Education she was “tired of giving in”. For more goals of equality, justice and peace that King Even before he stepped onto the national about , who was lauded for her was preaching. As notable examples, in ‘stage’ and ignited a widespread movement courage, wrote two compelling memoirs, and the middle of the sixties, Little Rock High for peace, justice and racial equality through lived into her nineties, see https://www. School and the University of Mississippi his electrifying voice and powerful words biography.com/people/rosa-parks. were integrated, Congress enacted the 24th invoking hope for the dreamers in his Amendment to the U. S. Constitution, and audiences, Dr. King had achieved many Etched Forever in Our Collective President Lyndon Johnson signed the Civil impressive goals. At an early age, and in Memories: Dr. King’s Compelling Rights Act of 1964. short order, Dr. King proved the belief that Words he was bright, articulate and driven by Events in the sixties related to Dr. Martin Dr. King’s Assassination: A Dark earning a B.A. in Sociology from ’s Luther King Jr. are forever etched in our Day for All, and Its Aftermath Morehouse College when he was only memories and in America’s history. On Sadly, as we all know, that decade didn’t nineteen, a B.A. in Divinity just three years August 28, 1963, King delivered perhaps his end well. Dr. King’s good fortune, and later, and then, in 1955, a Doctorate in most stirring and memorable speech, one possibly the momentum toward a more civil Systematic Theology from Boston University. that has come to be known as the “I Have a and just society, took a tragic turn on April Those studies and his degrees both reflected Dream” speech. To the 250,000 participants 4, 1968 when Dr. King was assassinated his interest in canonical teachings and in that day’s organized march to D. C., King in Memphis, Tennessee and it seemed the grounded him in the power of oratory of pronounced: “ that one day world had come to a stop. By that time, a spiritual nature that would engage his this nation will rise up and live out the true many who questioned his motives and listeners and move them to action. meaning of its creed, ‘We hold these truths his means to achieving peace and equality to be self-evident: that all men are created had begun to appreciate the import of his How Rosa Parks’ Courage Helped equal.’” In that same speech he made the messages and his work on the ground toward Inspire Dr. King’s Early Activism and dream personal when he stated: “I have a implementation of his mission—even though Advocacy for the Oppressed and dream that my four children will one day some believed Dr. King was espousing more Dispossessed live in a nation where they will not be aggressive actions to bring about the change Also in 1955, Dr. King was chosen by judged by the colour of their skin, but by he wanted. While his death left a terrible local civil rights activists to lead a one- the content of their character.” The theme void, his legacy as a ‘champion of peace’ has day boycott of the buses in Montgomery, of non-judgmental equality and respect continued to move us forward toward a more Alabama. Their protest was spurred by area for human rights and opportunity for all just society, even if slowly and with ‘bumps’ residents upset when Rosa Parks, a black without regard to color resonated with many in the road in recent years. Still, we all need woman, was arrested and fined on the bus individuals besides the marchers, which is to keep vigilant to make sure we don’t lapse she was taking home from work for violating what King intended: that his message of hope in our efforts or allow prejudice, anger and the City’s segregation laws. Parks had refused would take hold across the nation and trigger distorted perspectives to further divide us as the order of the bus driver to give up her seat needed changes in the law. a nation into separate and unequal factions. to a white man who had been standing on And this is where Vernon Jordan enters the the crowded bus. Under local law governing In the Face of Many Threats to scene and shares a somewhat different and public accommodations, he was entitled to Him and His Family and All His thus refreshing view of how to best honor preferential seating because of his race. That Detractors, Dr. King Received the the work done and progress achieved by Dr. single day turned into a year which is how Nobel Peace Prize in 1964 King. long it took Montgomery to desegregate the The era of the sixties was also witness to buses. the award of the Nobel Peace Prize to Dr. Who Is Vernon Jordan and What By persisting in its defense of racial King—in 1964. In the presentation to King, Does He Have to Say About MLK segregation within its public transportation Nobel Committee Chairman Gunnar Jahn Jr.? system, the City not only faced legal and described the Reverend as an “undaunted Vernon Jordan, who is African-American,

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graduated from Law to Action’ as a Means to Change should consider ourselves the heirs of his School in 1960 and joined the firm of a It is on the stage before attentive legacy and take on the tasks he left to us— prominent civil rights attorney in Atlanta as audiences such as college graduates, that unfinished—until they are finished. a law clerk earning $35 a week, eventually Jordan is most effective. In June of 2015, becoming a well-known civil rights advocate What Can We Do to Make a speaking to Stanford’s graduating class at a Difference ‘Going Forward’? in his own right. As a new lawyer, Jordan multi-faith celebration for the students and For us to stay on track toward achieving was part of an NAACP team representing a their families, he minced no words, instead justice for all, we must have strong leadership young black man who, in a mere 48 hours, urging the audience to be ‘disturbers of the in our local, state and federal governments had been arrested, arraigned, indicted, unjust peace’. Using a question from the and in the private sector, as well as great tried, convicted and sentenced to death prophet Isaiah: “Who will go, and whom teachers in our schools. It is through the by electrocution. That was a time when shall we send?” as a basis for his message that polls at each election and, of course, through ‘colored’ people had to find outlying black- day, Jordan said he prays the answer is “Here our political discourse and educational only motels when transacting business in am I. Send me.” He continued on: “Send systems, that we can encourage each new the courts—or anywhere. And because they me to help clear the rubble of racism still generation to attain a better understanding were banned from restaurants, they had to strewn across this country. Send me to be as to the positive outcomes when diverse buy food at a grocery store and eat in their one of the bulldozers on behalf of equality communities live and work together in car. and in the cleanup crews against injustice. mutual respect for their differences. We Mr. Jordan’s firm, which included Send me to ‘disrupt’ injustice. Send me to must also do what we can to assure that Constance Motley, sued the University of ‘hack’ bias and bigotry. Send me to ‘lean equal opportunities for achievement are in Federal Court, alleging that its in.” available to all. Part of this equation is restrictive admission policies constituted And now, ‘fast tracking’ right to 2018: having the will to speak up when we see racial discrimination. Despite challenges and Vernon Jordan, at 83 years of age, was imbalances and inequities. It is especially a stay that was reversed, the case concluded invited by Dr. Otis Moss III, the young and important that, as lawyers, we also use our successfully for the plaintiffs in 1961 with the engaging Senior Pastor of the Trinity United knowledge, our words, and our penchant Court Order directing that the two named Church of Christ in the Washington Heights for persuasion to convince others to join the African American plaintiffs be admitted to Community on Chicago’s South Side, to give movement and commit to action toward a the University. (See Holmes v. Danner, 191 F. the guest sermon at the Church’s September more fair and just treatment of those groups Supp. 394 (M. D. Ga. 1961.) In 1970, having 30, 2018 Sunday morning service focused in our communities who have no voice, no left his firm, Jordan became the executive on ‘Honoring Our Elders’. How did I learn advocates, and waning hope. director of the United Negro College Fund, about this meaningful event? Attorney Meanwhile, let’s not forget the upcoming and in 1971 he assumed the presidency of Juan Thomas, a member of the ISBA’s 2021 Martin Luther King, Jr. Holiday to be the , a position he Standing Committee on Racial and Ethnic observed on Monday, January18, 2021. We held until 1981 when he resigned to become Minorities and the Law, had invited his hope you will join in the tributes likely taking legal counsel in the Washington, D.C. law REM colleagues—which includes me—to place all over Chicago—especially in our office of a Texas firm. this special church service, and I decided to public schools and in other public arenas, Aside from serving as a presidential attend-with my husband Noel. Besides being as Chicago is a City that particularly and advisor and a consultant to other high quite touched by the warm welcome we warmly embraced King and to which he had level government officials, and in demand received from the congregants that day in a many close ties. Between 1956 and 1966 Dr. for appointment to the boards of multiple venue where we were two of just a handful of King gave three speeches at the University corporations, Jordan has recently held the white people in attendance, we were moved of Chicago’s well-known Rockefeller Chapel, position of senior managing director for by Pastor Moss’ sermon and by Mr. Jordan’s all of which became famous for his inspiring an investment banking firm. He has also compelling insights. messages and brought him to the attention of authored two books, most recently (2008) The primary message Jordan conveyed the public. Make It Plain: Standing Up and Speaking is simple: While it is important to honor Resources for learning more: If you wish Out, a collection of his public speeches with MLK Jr. for his accomplishments and to read more about Dr. Martin Luther King commentary. The title certainly makes plain celebrate his storied career as a civil rights Jr. and his legacy, check out the University of what Jordan has fought for all of his life and activist, we cannot, must not, stop there as Chicago’s website at http://mlk.uchicago. career. This indefatigable humanitarian has we often do, assuming it is enough to pay edu/ which offers significant material about continuously used his legal and oratory skills a yearly tribute to Dr. King as our means the subject, what the University is doing to and his talent for advocacy to help move the of supporting racial, ethnic and gender pay tribute to Dr. King this year, and how to dial forward on the task of eliminating racial equality. Instead, we have to keep King’s pursue ‘civic engagement’ toward increasing injustice. DREAM alive by working to achieve the diversity and inclusion. Much historic detail goals he pursued. In other words, we Vernon Jordan’s Characteristic ‘Call is available on the website for the National

4 Park Service’s Martin Luther King, Jr. Change in Atlanta, Georgia, which Mrs. lawyer—and ultimately became the second black woman to graduate from Columbia Law School where she Memorial located in Washington, D.C. That established in tribute to met , chief counsel for the NAACP site, though unable to provide continuing her husband, not as a ‘dead monument’ but Legal Defense Fund where Motley worked while a law student. She later clerked for Supreme Court Justice updates due to the current ‘shutdown’ of the as a living testimonial that would engage Marshall, became chief counsel herself of the NAACP Federal Government that is severely affection and empower visitors. The King Center, a Legal Defense Fund, and wrote the draft complaint for Brown v. Board of Education. As a practicing attorney, the NPS’s ability to take care of its various 23-Acre National Historic Site that invites Motley argued before the Supreme Court, winning nine sites, is nevertheless at least accessible at: and enables visitors to embark on a self- out of her ten cases. As lead counsel, Motley was also successful in defending protestors arrested in the early https://www.nps.gov/mlkm. Teachers guided tour, includes a Library and an sixties for taking part in the Freedom Rides, and for will also find many resources for observing Archive and, as of last year, it had initiated a helping gain admission to the University of Mississippi in 1962. Ultimately turning to the the Holiday at www.MLKDay.gov. For the project for an “innovative digital strategy and political arena, Motley became the first black woman to young and older, participating in a ‘Day of conference series”. Check it all out at http:// serve in the New York State Senate. In another first for an African American woman, Motley became a federal Service’ as part of the MLK, Jr. Holiday is a thekingcenter.org. n judge when President Lyndon Johnson appointed her to way to help preserve Dr. King’s legacy and the Manhattan Federal District Court in 1966. After a 1. Constance Motley, widely known as an early civil very full and productive life, Constance Motley died in keep the torch of equality burning rights activist, was born in 1921, the ninth of twelve 2005 at the age of 84. One additional reference is The Martin children, to parents who emigrated from the West Indies. At the age of 15, having been inspired by reading about Luther King, Jr. Center for Nonviolent Social civil rights heroes, Motley decided she wanted to be a Altered Criminal Court Proceedings in an Unprecedented Era: What Is New, How it Is Working, & Practices We May Keep in the Post-Pandemic World BY HON. JOHN O’GARA JR.

Throughout the state of Illinois, courts detainees, giving us enough time to truly barriers certainly make it feel as if we are have made dramatic changes in response reflect on the statutory factors necessary to sitting in a hockey penalty box, but it is a to the COVID-19 epidemic. The St. Clair set a fairer bail in each matter we hear. comfort knowing that such protocol may County courts’ adaptations were difficult, We still conduct some in-person hearings, prevent or substantially reduce the chances but on the whole the response was quick, but they are very limited. To accommodate of spreading this awful virus. and, as I am sure many are finding out, some this substantial change, our Public We have been equipped for a number of of the changes will benefit the courts after Building Commission and its employees, years with a closed-circuit television feed the Pandemic has passed. I am assigned to a in consultation with the St. Clair County from one of the felony courtrooms and busy felony courtroom in St. Clair County. In Health Department, has worked with us one of the misdemeanor courtrooms to the March 2020, the immediate realization was by installing barriers which, in addition to county jail. This access option was used for dramatically clear: that we had to severely masks and frequent sanitation, makes the first appearances during weekdays. We still curtail in-person appearances. The chance process as safe as possible. The plexiglass had a judge and a clerk appear in person at for innovation soon followed. the county jail’s chapel every Saturday and The crisis and its associated need to keep additional holiday dates for first appearance everyone safe created the opportunity for a arraignments and bond hearings. We have new Twentieth Circuit Court order allowing changed this decades old practice and are for the waiver of preliminary hearings and now conducting the weekend and holiday arraignments by closed circuit television, appearances remotely from the courthouse. consistent with the statute. The process is This change is safer, allows the judges more secure and has also allowed the trial and clerks to have computer access and, court judges a new opportunity to conduct hopefully, makes the process fairer for each an additional review of bond for pre-trial defendant.

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For some time before the crisis, I which will save attorneys, their clients, Of utmost concern, the continued high had hoped to improve the ability to use victims and interested parties time and positivity rate for COVID-19 deprives technology in streamlining routine court resources. detained individuals of their right to a safe, appearances. I often worried that requiring The most dramatic change-and, effective and speedy jury trial. This has led the accused to appear at numerous status unfortunately not for the better- is our to an increase in the jail population in our conferences may harm that person’s ability to inability to safely conduct jury trials. The county. The crisis has focused our courts on earn a living or otherwise affect the accused number of trials has been declining for many searching for and creating alternatives to pre- negatively, thus creating a needless, vexatious years, but nevertheless, not having regularly trial detention on an accelerated basis, and burden for victims who wish to attend, and scheduled jury trials is a major concern. this has provided the glimmer of hope for that, in general, repetitive hearings helped The effect of postponing perhaps the most addressing this dire situation. As a result of no one in the process of achieving justice for important right a person has in our legal our efforts to confront the pandemic, we now anyone. The crisis we face has accelerated our system is profound. The looming eventuality have a better ability to rely on new methods: efforts to finally have improved computer of trial often precipitates the resolution of a GPS, Zoom, and other communication access throughout our courthouse. We can case, and its absence has no doubt caused a technology, to incorporate modern pre-trial better use Zoom as well as other platforms great number of cases to remain pending. practices.n for remote participation for routing matters Livestreaming Court Cases

BY KELLEN J. DYKSTRA

Introduction livestreamed will be left to the judge’s the Judge shall consider live streaming all COVID-19 has led to court proceedings discretion. However, under the Public Access virtual proceedings regardless of who is being done online rather than in person. heading of the court’s Reestablishment Plan, physically present in the courtroom at the Many court proceedings are now being the court has also stated: time of the hearing.” Id. livestreamed to the public through mediums If the public’s ability to physically access The court has further set out limitations such as YouTube and Facebook Live. For the to the courthouse is restricted to emergency for what the public can do regarding the circuit court of the Twenty-Judicial Circuit of or essential matters only, then the public livestreams: “Video or audio recording, of the State of Illinois, some judges are allowing will not be allowed to enter the courthouse any live-streamed proceeding, by any party, livestreaming through YouTube, while for the purpose of viewing proceedings. attorney, or any member of the public, others are concerned that livestreaming If proceedings are conducted during this through any device or format is strictly might detract from courtroom decorum and time period in a Virtual Courtroom, the prohibited. Failure to comply with this proper security of their court. In a recent proceedings must be livestreamed to ensure admonishment may result in the imposition press release regarding livestreaming from public access to the proceeding. of sanctions or in a finding of contempt.” the circuit court, the court declared: Reestablishment Plan, 22nd Judicial Circuit, See Press Release. In order to ensure In addition to video appearance, McHenry County, Illinois, Continuity of this happens, the court deletes YouTube members of the public may be able to view Operations (https://www.mchenrycountyil. content immediately after it airs and puts a court proceedings that will be live streamed gov/home/showdocument?id=98429) watermark on the livestream feed reading to the internet to ensure public access to [hereinafter Plan]. “COPYING IS PROHIBITED,” “DO NOT proceedings. Cases which are closed to the This quotation from the Reestablishment COPY,” or other words to that effect.See public will not be live streamed, and judges Plan suggests that judges are not given a Plan. choice as to whether their court proceedings do have the judicial discretion to not live Legal Analysis stream a proceeding. are to be livestreamed. Yet the Plan also Press Release, Illinois Supreme Court gives some deference to judges under the Right for Public to Have Courtroom Modifies Order to Allow Circuit Courts to Conduct & Decorum heading, stating, “The Access nd Resume, 22 Judicial Circuit, McHenry Judge shall make every effort to maintain Having courtroom access is derived from County, Illinois (May 21, 2020) (https:// the same level of decorum as if participants two sources. The first source is the common www.mchenrycountyil.gov/home/ were physically present in the courtroom.” law presumption giving the public a right of showdocument?id=98427) [hereinafter Press Id. Further, in the Public Access heading in access to court proceedings. Nixon v. Warner Release]. the Reestablishment Plan, the court states, Communications, 435 U.S. 589, 599 (1978). This press release seems to indicate “In order to reduce the number of people Courts that have ruled on this have agreed that whether a judge’s court cases are coming into the courthouse at any one time,

6 that the decision on whether to access is rights are no greater than those of any other persons shall have free access for inspection best left to the discretion of the trial court, member of the public. Id. at 589. Thus, and examination to such records, docket which should make its decision in light of members of the media and members of the and books, and also to all papers on file in the relevant facts and circumstances of the public are treated the same by the court. the different clerks’ offices and shall have particular case. Id. the right to take memoranda and abstracts Courts’ Obligation to Livestream The second source is the First thereto.” Amendment right to freedom of speech, Although the public has a right to access 705 ILCS 105/16(6). which carries with it some freedom to listen court proceedings to some degree, it is a This statute “does not, however, abrogate and the right of access to places traditionally different matter to prove that courts must the trial court’s inherent power to control open to the public, as criminal trials have be obligated to provide a livestream when its files and to impound any part of a file long been. Richmond Newspapers v. Virginia, courts are not open to the general public. in a particular case.” In re Marriage of 448 U.S. 555, 576 (1980). The public has The Supreme Court has concluded that Johnson 598 N.E.2d 406, 409 (Ill. App. Ct. access not only to criminal cases, but civil “expression by means of motion pictures 1992); see also Deere & Co. v. Finley, 431 cases also. This can be supported by the is included within the free speech and free N.E.2d 1201, 1203 (Ill. App. Ct. 1981). The common law, with evidence such as the 1677 press guarantee of the First [Amendment].” Supreme Court of Illinois has also “deemed Concessions and Agreements of West New Joseph Burstyn v. Wilson, 343 U.S. 495, 502 public access to court records ‘essential to Jersey, which provided, “That in all publick (1952). From this, it can be concluded that the proper functioning of a democracy’ courts of justice for tryals of causes, civil or livestreaming is protected free speech, but because ‘citizens rely on information about criminal, any person or persons, inhabitants that does not necessarily mean that courts our judicial system in order to form an of the said Province may freely come into, are to be required to conduct it themselves educated and knowledgeable opinion of and attend the said courts, and hear and be in order to uphold the public’s right of its functioning.’” United Conveyor Corp. present, at all or any such tryals as shall be access. In Warner Communications, the most v. Allstate Ins. Co., 92 N.E.3d 561, 566 (Ill. there had or passed, that justice may not be important case regarding court access, the App. Ct. 2017); see also Coy v. Wash. Cty. done in a corner nor in any covert manner.” court determined there to be a “presumption Hosp. Dist., 866 N.E.2d 651, 653 (Ill. App. Id. at 567. In addition, there are policy in favor of public access,” but failed to clarify Ct. 2007). There is a presumption that the reasons that support the public being allowed the strength of this presumption, leaving public has access to court records under the access to court proceedings in civil cases: it up to the courts of appeal to decide for First Amendment, which gives the public education of the public on legal proceedings themselves. Edwards, 672 F.2d at 1293; the right to inspect court records which have and ensuring accurate fact-finding and court see also Warner Communications, 435 “historically been open to the public” and decisions. Id. at 572, 595-96. U.S. at 599. In Warner Communications, disclosure of which would further the court There are limitations on how much access the court also declared, “[T]he decision proceeding at issue. Skolnick v. Altheimer & the public can have to courtrooms. The as to access is one best left to the sound Gray, 730 N.E.2d 4, 16 (Ill. 2000); see also Supreme Court has declared, “[T]he right discretion of the trial court, a discretion to United States v. Corbitt, 879 F.2d 224, 228 to inspect and copy judicial records is not be exercised in light of the relevant facts (7th Cir. 1989). “To overcome presumption, absolute . . . Every court has supervisory and circumstances of the particular case.” the party opposing public access bears the power over its own records and files, and Warner Communications, 435 U.S. at 599. burden of establishing: (1) a compelling access has been denied where court files Therefore, courts are given significant leeway interest that favors a closed file, and (2) that might have become a vehicle for improper in how they wish to allow public access to the protective order is drafted in the least purposes.” Warner Communications, 435 U.S. courtrooms. restrictive manner possible.” Skolnick 730 at 598. There can be instances in which the Livestreaming in Illinois Courts N.E.2d at 16. Livestreaming is a very recent right of access is superseded by a defendant’s The Supreme Court of Illinois affirmed development, so it cannot be argued that it constitutional right to a fair trial but this that “the court has supervisory authority falls within the category of being “historically can only be “on the basis of articulable facts over its own records and files and may open to the public.” It is important to note known to the court, not on the basis of deny access at its discretion.” People v. that most courts prohibit the recording unsupported hypothesis or conjecture.” U.S. Zimmerman, 120 N.E.3d 918, 921 (Ill. 2018). of court proceedings and having all court v. Edwards, 672 F.2d 1289, 1294 (7th Cir. In Illinois, there is a common law right for proceedings livestreamed would make this 1982). However, there can be times where public access to court records, which states: rule very difficult to enforce. The public there is “such a probability that prejudice will “Such other books of record and entry as have historically had access to in-person, result that [the procedure used by the court are provided by law, or may be required in live court proceedings, and documents (in this case, televising a well-known case)] the proper performance of their duties. All upon request, but not to video footage of is deemed inherently lacking in due process.” records, dockets and books required by law proceedings, which is what could potentially Estes v. Texas, 381 U.S. 532, 542-43 (1965). to be kept by such clerks shall be deemed be available if livestreaming were obligated It is also important to note that within public records, and shall at all times be open for all courts. the courthouse, a reporter’s constitutional to inspection without fee or reward, and all

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Courtroom Decorum During the last thirty years, studies Warner Communications, 435 U.S. at 598. Another important consideration is conducted by state and federal jurisdictions Kellen Dykstra worked as a 2020 how livestreaming might affect courtroom to evaluate the effect on the judicial process summer extern for Circuit Judge Michael decorum. “It is essential to the proper of the presence of cameras in courtrooms Chmiel of the Twenty-Second Judicial administration of criminal justice that have demonstrated that televised coverage Circuit of the State of Illinois. Kellen is dignity, order, and decorum be the of trial court proceedings does not impede now in his second year of law school at the hallmarks of all court proceedings in our the fair administration of justice, does not University of Illinois College of Law, with country.” Illinois v. Allen, 397 U.S. 337, compromise the dignity of the court, and interest in probate, business, real estate, and 343 (1970). In Illinois v. Allen and Deck v. does not impair the orderly conduct of contracts. Kellen grew up in Hudsonville, Missouri, the Supreme Court considered the proceedings . . . The results of studies of Michigan, and attended Grand Valley State constitutionality of shackling a defendant these experiments, conducted between 1979 University, where he majored in history and in court in a criminal trial. “The concern and 1994, establish that a silent, unobtrusive geography.n for courtroom decorum is not a concern in-court camera can increase public access to about defendants, let alone their right to the courtroom without interfering with the due process. It is a concern about society’s fair administration of justice. need for courts to operate effectively.”Deck Katzman v. Victoria’s Secret Catalogue, 923 v. Missouri, 544 U.S. 622, 656 (2005). These F. Supp. 580, 586 (S.D.N.Y. 1996) cases are more than about shackling; they are It is important to note that livestreaming about how courts should and may control court cases has never been done to the decorum. In Deck, the Supreme Court extent that it has been done since COVID-19 overruled the trial court, which had rejected began, so updated studies should be more the defendant’s objection to the appearance readily available. In addition, it is better of the defendant in court with shackles on. to allow judges to decide on whether to Appearing in court like this had a possibility livestream their cases, since case law favors of influencing the jury.Id. at 658. However, giving them discretion in court decorum. the Court did recognize the possibility Conclusion for judges to take account of special With a nationwide pandemic, courts circumstances, including security concerns, must make adjustments in order to continue which could call for shackling defendants. Id. carrying out justice. It is undeniable that These cases show that the Supreme Court video must be used for lawyers, witnesses, recognizes a right for courts to exercise defendants, and plaintiffs to be required discretion regarding matters of decorum. to appear before judges in court. However, This is a right which extends back many judges should not be obligated to livestream. years: “[C]ourts of justice are universally In Warner Communications, the Supreme acknowledged to be vested, by their very Court emphasized the importance of courts creation, with power to impose silence, deciding for themselves how best to exercise respect and decorum in their presence, and proceedings. Warner Communications, 435 submission to their lawful mandates.” Ex U.S. at 599. Judges should consider facts parte Terry, 128 U.S. 289, 303 (1888). The and circumstances themselves to determine court of appeals also recognizes this: “Such whether livestreaming should be allowed. matters of courtroom decorum rest in the A valid concern of judges is that a member sound discretion of the trial court.” U.S. v. of the public can record court proceedings Roustio, 455 F.2d 366, 371 (7th Cir. 1972). (which is not allowed by many courts) In addition, Illinois courts recognize this and use recordings as a political weapon, deference to judges: “It would be utterly which can be worrisome for a judge who is impossible for the law of the land to be elected. Estes v. Texas, 381 U.S. at 548. We properly administered if judges do not have are in the early stages of livestreaming court the power to prevent instances of indecorum cases, and it is best to proceed cautiously from occurring in their own presence.” and allow discretion rather than to mandate People v. Bell, 658 N.E.2d 1372, 1379 (Ill. certain methods of proceedings of the App. Ct. 1995). judges. It is important to be aware of the risk Advocates of livestreaming court of livestreaming being used by unknown cases will argue that livestreaming has no parties as a “vehicle of improper purposes.” detrimental effect on matters of justice:

8 ISBA Launches Rural Practice Fellowship Program as Component of Rural Practice Institute

BY DANIEL R. THIES & LOIS J. WOOD

In an effort to address the ongoing a stipend. Summer fellows will receive practitioners to secure a summer clerk fellow shortage of attorneys practicing in rural a $5,000 relocation and expense stipend will be March 14, 2021.n Illinois, the ISBA has launched the Rural from the ISBA, plus any amount that the Practice Institute and the Fellowship experienced practitioner agrees to pay Program that is a part of that Institute. The them. This arrangement will allow fellows Daniel R. Thies and Lois J. Wood are co-chairs of Fellowship Program aims to connect rural to earn $8,000-$10,000 per summer, which ISBA’s Special Committee on the Rural Practice Initiative. and small-town law firms interested in hiring is extremely competitive for summer law clerks and associates with law students opportunities for law students. Associate and newer attorneys desirous of practicing fellows will receive the same $5,000 law in rural areas of Illinois. Attorneys and relocation stipend planned for the summer law students admitted into the Program fellows, but in addition, the associate fellows will receive a stipend of $10,000 or $5,000, will also receive a $5,000 stipend upon respectively, to encourage their establishment the completion of their first year as a rural of a practice in rural areas of our State. practitioner. This second stipend will serve Data shows that more than half of as an additional inducement for young and Illinois counties have fewer than 0.7 new lawyers to relocate permanently to rural lawyers in private practice per 1,000 areas. residents. Thirty-four Illinois counties “I look at this as part of succession have ten or fewer attorneys total in private planning,” ISBA President Dennis Orsey said. practice, and 13 counties have a total of “We know in a number of the counties in five or fewer attorneys in private practice. the state of Illinois we have an aging lawyer Worse, many attorneys in rural areas are population. A number of these practicing nearing retirement (for which step we wish attorneys have good, viable practices with them well) and are not being replaced in a built-in client base. What they’re looking significant enough numbers to avoid a for are younger attorneys who are willing to growing crisis in access to justice. settle in that rural community and eventually The ISBA Special Committee on the take over their practices.” Rural Practice Initiative created two Applications from both potential summer complementary fellowship programs to fellows and from law firms or experienced address the issue: practitioners seeking to employ a fellow will • a clearinghouse to connect law be due by February 12, 2021. students (summer fellows) with Additional information about the RPI rural practitioners for an 8-10 week program, as well as the application, can be summer clerkship; and found at https://www.isba.org/ruralpractice. • a clearinghouse to connect young The RPI Special Committee will lawyers (associate fellows) with inform applicants if they are accepted experienced practitioners searching into the program by March 1, 2021 and, for a permanent associate to whom to facilitate the scheduling of interviews, they might eventually transfer their will provide both summer fellows and practice. experienced practitioners with each other’s As an extra incentive, both summer contact information at that time. The fellows and associate fellows accepted into deadline for summer fellows to accept an these programs will be eligible to receive offer of employment and for experienced

9 Law Related Education ▼ JANUARY 2021 / VOL 7 / NO. 3 Using Social Media Wisely

BY KELLY LEEK

The First Amendment program: they had the right to take away his A single post can be seen by hundreds if “They can’t fire you for posting that!” funding and remove him from the program. not thousands of viewers a day, reaching “Free speech, buddy!” “We can say whatever The First Amendment did not protect that far beyond the original poster’s intended we want.” “We’re protected by the First particular speech. See Keefe v. Adams, U.S. audience. Amendment!” These statements often Court of Appeals for the Eighth Circuit, As described above, people have lost appear, separately or in a group, in the 2016. their scholarships, admission to universities, job offers, and life-long careers by posting comments section of news articles about Hiring & Firing social media users being punished for poorly-worded comments on social media. unpopular speech. But are any of these Job Offer Rescinded Even a picture can cost a Facebook user statements true? What does the First In 2009, a recent graduate, Connor Riley, his or her job. Consider Ashley Payne: in Amendment actually say about what we post aged 22, suddenly found herself without 2011, the teacher lost her battle in court on Facebook, Twitter, Instagram, and all the a job offer when Cisco, her soon-to-be after the school fired her for posting other apps we use to stay connected? The full employer, was notified of this tweet: “Cisco pictures of alcoholic beverages while she text is as follows: just offered me a job! Now I have to weigh was on vacation in Europe. See https://www. “Congress shall make no law respecting the utility of a fatty paycheck against the abajournal.com/news/article/judge_rules_ an establishment of religion, or prohibiting daily commute to San Jose and hating the against_teacher_who_says_she_was_fired_ the free exercise thereof; or abridging the w or k .” over_facebook_photos/. freedom of speech, or of the press; or the After Twitter dubbed her the “Cisco At this point, some might ask: why should right of the people peaceably to assemble, Fatty,” Riley’s internship was quickly revoked I use social media? How can I use it safely? and to petition the Government for a redress by her offended hiring manager. Seehttps:// Here are three simple guidelines for using of grievances.” www.nbcnews.com/id/wbna29901380. social media wisely: If you look closely at the text, you will • Use Facebook, Twitter, Instagram, see that private individuals and companies Veteran Employee Removed etc. to connect with friends and are not mentioned. The Supreme Court has In 2010, Octavia Nasr, CNN’s senior family in positive, uplifting ways. said that the amendment applies to both Middle East editor, was fired for this tweet: Post that cute photo of the new federal and state actors. In other words, the “Sad to hear of the passing of Sayyed baby, the family pet, or Grandma’s government, both federal and state, as well Mohammad Hussein Fadlallah. One of cookie recipe. Use this space as an as public entities of the state, has to avoid Hezbollah’s giants I respect a lot.” opportunity to stay in touch with passing laws and acting in other ways that Although Nasr quickly apologized and loved ones who do not live nearby. impermissibly restrict speech. However, removed the tweet, the damage was done. Having your support system at the this restriction on the government’s power The tweet had circulated widely and drew tips of your fingers can be a breath does not protect speakers from social quick criticism from the United States of fresh air while you are working consequences of their speech. The following and Israel. Although Nasr’s tweet was an a competitive job or pursuing a examples illustrate the far-reaching effects of expression of her own political opinion challenging degree. using social media unwisely. and not intended to be a statement of her • Use professional networking sites employer’s position, CNN fired Nasr shortly such as LinkedIn to establish a Education & Funding afterwards. Seehttps://www.theguardian. professional image. Post your job In 2015, a nursing student posted com/media/2010/jul/08/octavia-nasr-- qualifications, what sort of position troubling comments about other students on tweet-fired. you are looking for, and samples Facebook. The nursing program determined of your work and/or writing. Show that the student’s posts violated the Nursing Is Social Media SAFE to Use? professionals in your field of interest Association Code of Ethics. The student The consequences of using social media that you are someone they should insisted that the off-campus speech was unwisely can be both far-reaching and “keep in the loop” when it comes to covered by the First Amendment, and that he devastating. What is “out there” on the job and academic opportunities. could not be punished by being ejected from internet stays on the internet. Even if users • Use sites like Instagram and Tumblr the program. However, the court determined delete their posts, websites may continue to express your creativity. Show us that the unethical and unprofessional to store the data. Also, other users might a picture you painted, a photo you behavior could be punished by the nursing already have saved or shared the content. took, or a poem that you wrote.

10 However, the old adage still applies: sense and an abundance of caution while With a bit of planning and forethought, you probably would not want to post using social media. Pause before posting. using social media can be both an enjoyable anything you would not want your Ask yourself, “Would I be embarrassed pastime and a useful tool, including for grandmother to find. if everyone saw this? Is it all right if this connections, for young and old alike.n In other words, exercise both common comment or photo is out there forever?”

New and Not-So-New January Holidays

BY SANDRA SWEENEY

2020-WOW! A year everyone would Day, National Rubber Ducky Day (My Duck frustrates me, because I’m just not quick like to forget! To assist with that goal and is green, what is yours?) enough to turn it around.) add some humor to your lives, HERE are Jan. 14: Dress Up Your Pet Day (He hates Jan. 26: Spouse’s Day (Do something ‘suggestions’ from the internet for new/not his sweater; I don’t think this will work) special for your special someone and that so new January holidays we might wish to Jan. 15: National Hat Day, National Bagel someone will, in turn, do something special observe. Day: (YES-make mine a sesame seed with a for you! Now that is a win-win situation.) JANUARY ton of cream cheese! And you should wear a Jan. 27: National Chocolate Cake Day, Jan. 1: New Year’s Day, National Hangover hat while eating yours!) Punch the Clock Day (Oh yea, love that Day (enough said) Jan. 16: Appreciate a Dragon Day (if chocolate cake.) Jan. 2: National Science Fiction Day (Star you can find one), National Nothing Day Jan. 28: National Kazoo Day, Data Privacy Trek marathon anyone?) (nothing to say) Day (Just hum into the kazoo and the tune Jan. 3: J.R.R. Tolkien Day (I had to look Jan. 17: Benjamin Franklin Day, Ditch will be stuck in your head and the heads this one up.) Celebrate if you are a fan of New Year’s Resolution Day (Never can stick of everyone else who hears it--making for “The Hobbit” or “Lord of the Rings” by those resolutions) harmless fun all day long.) Jan. 4: Trivia Day, National Spaghetti Day Jan. 18: Thesaurus Day, Winnie the Pooh Jan. 29: National Puzzle Day, National (Exercise your brain and get completely filled Day, Martin Luther King Jr. Day (third Corn Chip Day (Make sure the puzzle is not up on tasty carbs day.) Monday of January). Let us always remember too hard or this day could turn into National Jan. 6: Sherlock Holmes’ Birthday, Cuddle the sacrifices Dr. King made to bring all Puzzle Month and cause consumption of Up Day (Sherlock Holmes movie marathon humanity together peacefully! We could ‘mucho’ Corn Chips!) while wrapped in your favorite blanket?) really use him NOW. Jan. 30: Draw a Dinosaur Day (Nope, my Jan. 7: Old Rock Day (The unofficial Jan. 19: National Popcorn Day, National drawing is just BAD but maybe you will do holiday encourages people to acknowledge, Tin Can Day (Love that cheese popcorn--it is better!) celebrate, and learn more about old rocks truly addictive!) Jan. 31: Backward Day, Inspire Your and fossils. Geology and dust, anyone?) Jan. 20: National Cheese Lovers Day and Heart With Art Day (Take a look at some art Jan. 8: Bubble Bath Day (My kind of day) Penguin Awareness Day! (Do you think on-line and allow yourself to just fill your Jan. 9: National Static Electricity Day, Penguins like Cheese?) heart, brain, and emotions! Then grab some National Word Nerd Day: (Watch your Jan. 21: National Hugging Day, Squirrel markers, crayons or paint and brush and try sister’s or mother’s or wife’s hair stand on end Appreciation Day (This day fits me perfectly. your hand at a colorful piece of your own.) after you drag your feet across the carpet and I was always a hugger, now I have an excuse.) THAT’S IT for the month! While this touch her!) Jan. 22: National Blonde Brownie Day accumulation may not be earthmoving or Jan 10: Peculiar People Day, Houseplant (I do not care what color--they are all educational per se, we hope it stirred your Appreciation Day, National Bittersweet delicious.) imagination and also gave you something Chocolate Day (I hate to say I may resemble Jan. 23: National Handwriting Day, just to chuckle about during your reading this day! ) National Pie Day (Some could use this of the daily observances. We all need Jan. 11: Learn Your Name in Morse Code day to improve their skills, both for pie more of that in our lives right now since, Day: (Mine is: ... .- -. -.. ..) You want to try consumption and handwriting.) understandably, WE HAVE A LITTLE TOO yours? Go to morsecodetranslator.com. You Jan. 24: Compliment Day, Belly Laugh MUCH SERIOUSNESS, RIGHT? BTW, the can even listen to what it sounds like. Pretty Day (Make many people’s day by handing parenthetical comments are just my personal neat!) out those compliments because it takes only take on each of the days. What’s yours! Jan.12: National Pharmacist Day, National one minute of your time to make someone As Thomas Mann stated, “Laughter Is a Hot Tea Day (I’ll take mine Green) else’s day!) Sunbeam of the Soul.” Jan. 13: Make Your Dream Come True Jan. 25: Opposite Day (This one always

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