Request By:
Mr. Fred B. Creasey
Executive Director
Kentucky Association of Counties
205 Capital Avenue
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You refer to OAG 80-156, concerning an individual, who took pictures of the assembled fiscal court and suddenly disappeared. In that opinion we cited KRS 61.840, which provides in part that "All agencies shall permit news media coverage, including but not limited to recording and broadcasting. "
The concluding paragraph of that opinion read:
"On the other hand, if this woman was not connected with the news media, she did not have to identify herself. But the fiscal court could have permitted her to photograph the fiscal court, provided that she did not interfere with the maintenance of order of the meeting."
Your questions:
"My first question: Is my assumption correct? My second question: Is there statutory authority for non-media persons to photograph with television cameras and tape record with recording devices without receiving permission from the fiscal court?"
First, your assumption that we intended to say in that opinion that persons not connected with the media must have permission of the fiscal court in order to photograph the court and courtroom is correct.
Elsewhere in KRS 61.840, we find the provision that "All agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings. " (Emphasis added). Under the literal language of KRS 61.840, the statute is only providing for observation by the human eyes. See
Bailey v. Reeves, Ky., 662 S.W.2d 832 (1984) 834. In other words, only ocular perception is required to be provided, where feasible, and for effective public observation purposes. Thus there is no statutory authority for non-media persons to photograph, with television cameras and tape recording devices, the fiscal court without receiving permission from the fiscal court. We must emphasize the point that photographing and taping the fiscal court by private individuals not connected with the news media are permissive only as concerns the fiscal court, in view of the literal language used. In dramatic contrast, the statute, KRS 61.840, explictly provides that "All agencies shall permit news media coverage, including but not limited to recording and broadcasting. " The legislative intent was designed to provide for public or news media coverage of the fiscal court in action, which concept is framed around the democratic idea of letting the people know what is going on in county government. The private individual's photographing and taping the fiscal court would rarely, if ever, reach the general public's eyes.
Beyond the confines of KRS 61.840 is the First Amendment to the United States Constitution. That amendment provides, inter alia, that Congress shall make no law abridging the freedom of speech, or of the press. The First Amendment applies to the states through the Fourteenth Amendment, and covers the press and non-media individuals.
At the heart of the First Amendment is the promotion of liberty to discuss publicly and truthfully all matters of public concern without previous restraint of fear of subsequent punishment. Thus the use of television and other cameras and tape recordings of a fiscal court proceeding are calculated to bring out issues about which information is needed or appropriate to enable citizens of the county to cope with the exigencies of their period.
First National Bank of Boston v. Bellotti, 435 U.S. 765, 55 L. Ed. 2d 707, 98 S. Ct. 1407 (1978). In that case Justice Powell, for the court, wrote that "a major purpose of the First Amendment was to protect the free discussion of governmental affairs." Stated differently but using the constant theme, "It is the right of the public to receive suitable access to social, political, esthethic, moral, and other ideas and experiences which is crucial here."
Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 23 L. Ed. 2d 371, 89 S. Ct. 1794 (1969). In Red Lion Broadcasting, the court, in addressing the First Amendment, wrote that it is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. The court added that it is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail. Thus the key function of the news media is highlighted in those Supreme Court decisions. The news media is merely an agency for the dissemination of ideas and facts of governmental life to the citizens everywhere. See
Quinn v. Johnson, 51 A.D.2d 391, 381 N.Y.S.2d 875 (1976), in which the court wrote that "Television broadcasting falls under the umbrella of protection afforded the press for it too, in matters such as the subject under review, is engaged in the dissemination of information of public concern."
As relates to spectators in a fiscal courtroom in general, the decorum of such spectators is not a matter of expression of free speech nor is maintenance of order in such situation a violation of the
First Amendment. Ascheim v. Quinlan, (U.S. Dist. Ct. W.D. Pa. -1971) 324 F.Supp. 789, 796.
The Supreme Court of New Jersey, in State v. Smith, 46 N.J. 510, 218 A.2d 147 (1966) 150, observed that "whether the forum be the courtroom or the chamber of the legislature itself or of a political subdivision of the state, there must be order."
Within the context of open meetings statutory law, the
Supreme Court of Colorado, in Cole v. State, Colo., 673 P.2d 345 (1983) 350, stressed the important governmental interest furthered by open meetings law: The public's right of access to public information. Thus the First Amendment plays an important role in affording the public access to discussion, debate, and the dissemination of information and ideas.
The central point in this First Amendment treatment is that a free self-governing people needs full information concerning the activities of its government not only to shape its views of policy and to vote intelligently in elections, but also to compel the state, the agent of the people, and its political subdivisions to act responsibly and account for its acts.
CONCLUSIONS
(1) Under KRS 61.840, the fiscal court must permit news media coverage, including recording and broadcasting, use of television and other cameras and tape recording, subject only to the condition that order must be maintained. The statute is compatible with the Supreme Court holdings on the First Amendment.
(2) As relates to the non-media individuals attending a fiscal court meeting, KRS 61.840 affords only effective public observation of the meeting by such individuals by means of the human eyesight. Thus, if such persons desire to photograph or tape the court proceedings, permission of the fiscal court must be obtained under KRS 61.840. Such permission is subject to those persons' not interfering with the maintenance of order. The fact that permitting such non-media persons to photograph with a TV or other camera and tape record the proceedings is permissive would not, in our opinion, violate the First Amendment, since such individuals are not members of the news media, and ordinarily the work product of such photograph and tape recording would never get to the general public for consumption. In addition, there must be a proper balance between the First Amendment rights of private citizens and the utter need for the maintenance of order as relates to the work of the fiscal court. If any and everybody, as private, non-media citizens, could photograph and record the proceedings, the basis for order could conceivably be disturbed, such that the members of fiscal court would be distracted by such activities. The requirement for providing for maintenance of order applies to media and non-media people alike.