RTDNA and its Voice of the First Amendment Task Force have written a letter to all five members of the Delaware Court of Chancery, which hears many of the most important business disputes in the United States, urging them to follow a Delaware Supreme Court rule that calls for court proceedings be open to electronic media coverage.
Since 2005, Delaware has had a permanent court instruction in place, Administrative Directive No. 155 (enacted following a one-year experiment), which states, in part, “The proceedings that may be broadcast, telecast or recorded shall be limited to non-jury civil proceedings, that are not otherwise confidential, in the Court of Chancery and the Superior Court, subject, in all cases, to the discretionary approval of the Judge, Chancellor or Vice Chancellor presiding over the case.”
In practice, for many years, a large number of Court of Chancery proceedings were, in fact, open to television cameras and microphones. However, the current chancellor of the court, Andre Bouchard, has reportedly decided that further guidelines are necessary and appears to have summarily halted all electronic media coverage while a new rules committee studies the issue. That committee has been working since October 2016 with input from journalists, but progress has been slow.
“Many of America’s largest companies choose to become incorporated in Delaware precisely because of the high esteem in which the Court of Chancery is held by the business community. Therefore, the Court, in our view, has a special obligation to ensure its own business is conducted fully in public by allowing broadcast and digital journalists to use the best tools of their trade,” said Dan Shelley, RTDNA Executive Director.
In a March 22 letter to the Court, Shelley wrote:
We write to urge you to conclude this review as soon as possible and conclude, as countless other reviews and studies have, that audiovisual coverage of its proceedings carries immense public interest benefits and can be done unobtrusively. In practice, what goes on inside a courtroom can only be effectively reported if the court permits journalists to use the best technology for doing so.
Shelley also noted in his letter that the Delaware Supreme Court itself, which adopted Administrative Directive No. 155, livestreams its own court proceedings and then archives the video so members of the public may view them at their convenience.
“Such coverage creates greater transparency, increases citizens’ knowledge and understanding of the court system, and advances the public’s right to know,” Shelley wrote.
Finally, Shelley said in his letter:
I would welcome the opportunity to discuss and provide input for your review. Additionally, RTDNA would be willing to work cooperatively with the Rules Committee to facilitate the formulation of rules. We respectfully submit, however, that Administrative Directive No. 155 was extensively vetted, and the court’s guidelines should be allowed to govern as intended, with judicial discretion exercised to prohibit audiovisual coverage only where it is found that such access would result in some specific countervailing harm. In any event, RTDNA urges the court to be transparent in its review process, and to avoid using any protracted examination of the rules as a pretext to deny legitimate requests for audiovisual coverage.
Wilmington, Delaware, attorney William M. Lafferty, who is heading the Court of Chancery’s review of electronic media coverage guidelines, also received a copy of RTDNA’s letter.
RTDNA formed the nonpartisan Voice of the First Amendment Task Force to defend against threats to the First Amendment and news media access, and to help the public better understand why responsible journalism is essential to their daily lives. RTDNA is a founding partner of the U.S. Press Freedom Tracker, the archive of record for threats against press freedom in America. Reach out to RTDNA by emailing firstname.lastname@example.org.
Note: This statement has been updated to include the fact that journalists have been working with the rules committee. The original version inaccurately indicated there had been little, if any, input from journalists.