By Jeffrey A. Roberts
CFOIC Executive Director

While Colorado’s judicial branch reviews its procedures for criminal courts livestreaming, it is also revising a 2010 rule governing news media access to all state court proceedings.

In September, Colorado Supreme Court Chief Justice Monica Márquez announced a 90-day pause in livestreaming — contradicting a state statute — because livestreamed proceedings have been shown without permission on YouTube and other monetized platforms.

During that time, the Supreme Court is asking for public comments on proposed changes to the Expanded Media Coverage policy which “are intended to modernize the rule, clarify standards for recording court proceedings, and ensure appropriate media access while maintaining the fairness and integrity of judicial proceedings,” chief communications officer Suzanne Karrer wrote in a news release last Friday.

The EMC rule, also known as Public Access to Information and Records Rule 3 (P.A.I.R.R. 3), has not been updated since it was adopted 16 years ago.

The proposed changes include a new process for journalists to request remote observation of non-livestreamed proceedings — via Webex or another videoconferencing platform — and a revised framework for “connecting media credentials to expanded media coverage requests and other media privileges.” Under the proposal, media credentials would be “encouraged, but not required, to apply for authorization to remotely observe non-livestreamed proceedings or conduct expanded media coverage.”

“Any such request must be submitted to the court at least 48 hours before the proceeding,” it says, “except that the judge may permit a request upon shorter notice, through a standard form promulgated by the State Court Administrator’s Office.”

A media credential issued by the judicial branch would be necessary to participate in a media pool, use portable electronic devices in a courtroom (with permission from a presiding judge) and access other privileges for the media outlined in a court order. Media is defined as “any news gathering or reporting entity that has as its principal business the regular gathering and reporting of original news or journalistic content in any medium (print, digital, or otherwise) aimed at informing the public or some segment thereof.”

The proposed policy “strictly” prohibits photography or audio or video recording of a proceeding, including a virtual or livestreamed proceeding, without a judge’s authorization. Permission to remotely observe a non-livestreamed proceeding “does not include permission to record the proceeding, unless the court has separately granted a request to do so in an order authorizing expanded media coverage.”

The deadline for submitting comments on the proposed new EMC rule is 4 p.m. on Friday, Dec. 4. Comments must be submitted in writing by email in letter format as an attachment in either Microsoft Word or PDF format to supremecourtrules@judicial.state.co.us. 

The livestreaming pause imposed by Márquez in Chief Justice Directive 26-01 is set to expire on Dec. 14, and it’s unclear whether it will be replaced by another order. “[T]he livestreaming technology that was intended to promote access to the courts has been subverted as a tool of disruption, disparagement, harassment, and private economic gain that is rapidly eroding the proper functioning of our system of justice,” the chief justice wrote in CJD 26-01.

“Despite clear, consistent warnings that the recording of any livestream is strictly prohibited, Judicial Department leadership has been flooded with reports from all corners of the state confirming that improperly recorded proceedings are being posted to YouTube, TikTok, Instagram, Facebook, and other social media platforms,” she added.

The Denver Post obtained data showing that social media creators who posted unauthorized videos of court proceedings this year accounted for a “tiny fraction” of all livestream viewers.

CJD 26-01, which lets judges turn off livestreaming, contradicts a state statute on the livestreaming of criminal court proceedings. The livestreaming requirements of C.R.S. § 13-1-132 “supersede any statute, judicial guidance, or chief justice directive limiting remote public observation.”

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