Media Coalition's Opposition to State's Motion
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27-CR-20-12951 Filed in District Court State of Minnesota 12/14/2020 9:34 AM STATE OF MINNESOTA DISTRICT COURT HENNEPIN COUNTY FOURTH JUDICIAL DISTRICT State of Minnesota Plaintiff, The Honorable Peter A. Cahill vs. Derek Michael Chauvin Dist. Ct. File 27-CR-20-12646 Tou Thao Dist. Ct. File 27-CR-20-12949 Thomas Kiernan Lane Dist. Ct. File 27-CR-20-12951 J. Alexander Kueng Dist. Ct. File 27-CR-20-12953 Defendants MEDIA COALITION’S OPPOSITION TO STATE’S MOTION FOR RECONSIDERATION OF ORDER ALLOWING AUDIO AND VIDEO COVERAGE OF TRIAL American Public Media Group (which owns Minnesota Public Radio); The Associated Press; Cable News Network, Inc.; CBS Broadcasting Inc. (on behalf of WCCO-TV and CBS News); Court TV Media LLC; Dow Jones & Company (which publishes The Wall Street Journal); Fox/UTV Holdings, LLC (which owns KMSP-TV); Hubbard Broadcasting, Inc. (on behalf of its broadcast stations, KSTP-TV, WDIO-DT, KAAL, KOB, WNYT, WHEC-TV, and WTOP-FM); Minnesota Coalition on Government Information; The New York Times Company; The Silha Center for the Study of Media Ethics and Law; TEGNA Inc. (which owns KARE-TV); and Star Tribune Media Company LLC (collectively, the “Media Coalition”) by and through undersigned counsel, hereby submit this Opposition to the State’s Motion for Reconsideration of Order Allowing Audio and Video Coverage of Trial. INTRODUCTION To frame the issue in the simplest terms: never before, in the history of this country, has there been a criminal trial like the one scheduled in these cases. While there have been big, DMNorth #7426617 v5 27-CR-20-12951 Filed in District Court State of Minnesota 12/14/2020 9:34 AM important cases, few, if any, gave rise to social justice movements the size of what George Floyd inspired.1 None of them, meanwhile, went to trial at a time when a deadly pandemic had the country in its clutches and when—simultaneously—the country had in its own clutches the technology to livestream a trial around the world. So while the State is correct that no court has recognized a First Amendment right to cameras in the courtroom, its cited precedents lose their punch when one steps back to acknowledge that no court has ever considered a situation quite like this one. The Court’s November 4 Order (“Order”) does just that. It confronts a complex and novel problem head on: How to conduct an extremely high-profile jury trial involving four criminal defendants sometime in the foreseeable future, consistent with the public-trial rights of the First and Sixth Amendments, while keeping trial participants, court staff, and the public at large safe from a highly contagious, deadly virus. It then settles on an extraordinary, perhaps unprecedented solution: This trial—of utmost public interest and concern—will be conducted in a courtroom where, due to social distancing requirements, “there will be little, if any, room” for the large number of spectators who wish to observe it. Order at 8. But, given the fundamental, constitutional rights such exclusion infringes, the Court will permit the trial to be recorded, broadcast, and livestreamed in audio and video so that members of the press and public can monitor the trial in real time, from the safety of their newsrooms, offices, and homes. Defendants, who have a Sixth Amendment right to a public trial, do not challenge this approach. The Media Coalition, though wary of such severe limitations on First Amendment 1 Larry Buchanan, Quoctrung Bui & Jugal K. Patel, Black Lives Matter May Be the Largest Movement in U.S. History, N.Y. Times (July 3, 2020), https://www.nytimes.com/interactive/2020/07/03/us/george-floyd-protests-crowd-size.html. DMNorth #7426617 v5 2 27-CR-20-12951 Filed in District Court State of Minnesota 12/14/2020 9:34 AM rights and doubtful that any sort of televised coverage can replicate the experience of being in the courtroom itself, understands the exigencies of the situation and are cautiously willing to accept the Court’s plan.2 So who is the naysayer in this equation? The State. The State claims that it “absolutely welcomes a public trial.” State Br. at 2. It has said that “[t]he public has a right to know that the trial is being conducted openly and fairly,” and that it “believes it is critical that the public is able to witness and observe the proceedings as they go forward in this matter of significant local, national and international interest.” Ltr. from Matthew Frank to Hon. Peter A. Cahill, Nos. 27-CR-20-12646 et al., (Henn. Cty. Minn. July 28, 2020) (emphasis added), https://www.mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR- 20-12646/Correspondence07282020.pdf . Yet rather than embrace the technology that could make all that possible,3 the State shuns that technology and goes so far as to suggest that, so long as a miniscule fraction of the people who want to watch the trial are allowed to do so (from an overflow room, no less), the constitutional prerogatives are satisfied. In refusing to consent to audio-visual coverage and in asking the Court to reconsider its Order, the State cites no clash of constitutional principles—how could it, when Defendants 2 Though the Media Coalition does implore the Court to make every effort to ensure at least one pool reporter is allowed in the courtroom (in addition to any technician needed to operate audio- visual equipment), to observe those goings-on that cameras may not capture. 3 Recent history suggests people will indeed watch the proceedings if they are able to do so. A silver lining of the pandemic has been courts’ decision to livestream their proceedings and citizens’ resulting ability to observe the work of taxpayer-funded courts. For example, this past spring, more than 130,000 people listened live to oral arguments at the U.S. Supreme Court and as of September almost 2 million people had listened to recordings of those arguments. See Reporters Comm. urges US Sup. Ct. to continue livestreaming oral arguments, Reporters Comm. For Freedom of the Press (Sept. 16, 2020), https://www.rcfp.org/scotus-livestream-arguments- letter/. DMNorth #7426617 v5 3 27-CR-20-12951 Filed in District Court State of Minnesota 12/14/2020 9:34 AM consent? Instead, it expresses vague and speculative concerns regarding witnesses’ perceived reluctance to testify if they know cameras are present. See State Br. at 3. In so arguing, the State ignores that a mere preference for privacy is never enough to close a courtroom and it overlooks that many of the witnesses to George Floyd’s death—as well as many of his relatives—have already spoken to the media, including on video. The State also relies heavily on Minn. R. Gen. Prac. 4.02, which (it says) “strike[s] a careful balance between public access to criminal trials and the rights of parties and witnesses.” State Br. at 1. But in adopting Rule 4.02 as a pilot program in 2015, the Minnesota Supreme Court made clear that “[t]he media’s right to be present at public court proceedings as a representative of the public is not at issue here.” Order Promulgating Amendments to Minn. Gen. Rules of Prac., No. ADM09-8009, 2015 Minn. LEXIS 639, at *6 (Minn. Aug. 12, 2015) (“2015 Order”) (emphasis added). In other words, the Supreme Court was not contemplating the scenario now facing this Court: an extraordinarily important criminal prosecution where no members of the press or the public will be allowed in the courtroom. So whatever “careful balance” the Supreme Court struck in adopting Rule 4.02, the scale tips differently today, and following the letter of that rule would constitute a “true closure, in the sense of excluding all or even a significant portion of the public from the trial.” State v. Lindsey, 632 N.W.2d 652, 660 (Minn. 2001). As such, strict adherence to that rule would violate the First Amendment, which guarantees not just a theoretical right of access but an actual, meaningful right of access. The Court rightly held that, given the enormous public interest in this trial, the limitations imposed by the pandemic, and the options created by modern technology, meaningful access equates to remote access. It should stand by that decision. DMNorth #7426617 v5 4 27-CR-20-12951 Filed in District Court State of Minnesota 12/14/2020 9:34 AM BACKGROUND As the Court is well aware, George Floyd’s death led to an international outpouring of grief and anger over law enforcement’s treatment of Black men and women in America. It resulted in arguably the greatest display of civil unrest in the history of Minnesota and led to immediate calls for action and change. It is beyond dispute that how justice is meted out in the prosecutions of the four men involved in Floyd’s death is hugely important to this community, the State of Minnesota, the country, and the world. As the Court is also well aware, Floyd’s death and the resulting unrest took place in the midst of a deadly pandemic. As of December 11, 367,218 Minnesotans have tested positive for COVID-19, and 4,198 Minnesotans have died from COVID-19—nearly 1,500 of those deaths coming in just the last several weeks since the Court issued its November 4 Order. See Situation Update for COVID-19, Minn. Dep’t of Health (last visited Dec. 11, 2020), https://www.health.state.mn.us/diseases/coronavirus/situation.html. The situation is so dire that the Governor’s most recent executive order bans not only indoor social gatherings but also spontaneous outdoor gatherings, even if people are socially distanced and even if they are masked.